1993)"

JR/KPKJ/ 743-4- /.A2/ NG1

-? Index Tabic (o

DEC 1 6 (993

KATHRTNE a EVERETT
LAW UB RAPv

NORTH CAROLINA

IN TfflS ISSUE

EXECUTIVE ORDERS

IN ADDITION

Voting Rights Act
Wildlife Resources

PROPOSED RULES
Administration
Chiropractic Examiners
Commerce

Environment, Health, and Natural Resources
Human Resources
Labor

Practicing Psychologists
Secretary of State
Social Work, Certification Board
State Treasurer

RRC OBJECTIONS

RULES INVALIDATED BY JUDICIAL DECISION

CONTESTED CASE DECISIONS

ISSUE DATE: December 15, 1993

Volume 8 • Issue 18 • Pages 1720 - 1849

INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE

NORTH CAROLINA REGISTER

The North Carolina Register is published twice a month and
contains information relating to agency, executive, legislative and
judicial actions required by or affecting Chapter 150B of the
General Statutes. All proposed administrative rules and notices of
public hearings filed under G.S. 150B-21.2 must be published in
the Register. The Register will typically comprise approximately
fifty pages per issue of legal text.

State law requires that a copy of each issue be provided free of
charge to each county in the state and to various state officials and
institutions.

The North Carolina Register is available by yearly subscription
at a cost of one hundred and five dollars (S105.00) for 24 issues.
Individual issues may be purchased for eight dollars (S8.00).

Requests for subscription to the North Carolina Register should
be directed to the Office of Administrative Hearings,
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447.

TEMPORARY' RULES

Under certain emergency conditions, agencies may issue
temporarv rules. Within 24 hours of submission to OAH, the
Codifier of Rules must review the agency's written statement of
findings of need for the temporary rule pursuant to the provisions in
G.S. 150B-21.1. If the Codifier determines that the findings meet
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If
the Codifier determines that the findings do not meet the criteria,
the rule is returned to the agency. The agency may supplement its
findings and resubmit the temporary rule for an additional review
or the agency may respond that it will remain with its initial
position. The Codifier, thereafter, will enter the rule into the
NCAC. A temporary rule becomes effective either when the
Codifier of Rules enters the rule in the Code or on the sixth
business day after the agency resubmits the rule without change.
The temporary rule is in effect for the period specified in the rule or
180 days, whichever is less. An agency adopting a temporary rule
must begin rule-making procedures on the permanent rule at the
same time the temporary rule is filed with the Codifier.

ADOPTION AMENDMENT, AND REPEAL OF
RULES

NORTH CAROLINA ADMINISTRATIVE CODE

The following is a generalized statement of the procedures to be
followed for an agency to adopt, amend, or repeal a rule. For the
specific statutory authority, please consult Article 2A of Chapter
150B of the General Statutes.

Any agency intending to adopt, amend, or repeal a rule must
first publish notice of the proposed action in the North Carolina
Register. The notice must include the time and place of the public
hearing (or instructions on how a member of the public may request
a hearing); a statement of procedure for public comments; the text
of the proposed rule or the statement of subject matter; the reason
for the proposed action; a reference to the statutory authority for the
action and the proposed effective date.

Unless a specific statute provides otherwise, at least 15 days
must elapse following publication of the notice in the North
Carolina Register before the agency may conduct the public
hearing and at least 30 days must elapse before the agency can take
action on the proposed rule. An agency may not adopt a rule that
differs substantially from the proposed form published as part of
the public notice, until the adopted version has been published in
the North Carolina Register for an additional 30 day comment
period.

When final action is taken, the promulgating agency must file
the rule with the Rules Review Commission (RRC). After approval
by RRC, the adopted rule is filed with the Office of Administrative
Hearings (OAH).

A rule or amended rule generally becomes effective 5 business
days after the rule is filed with the Office of Administrative
Hearings for publication in the North Carolina Administrative Code
(NCAC).

Proposed action on rules may be withdrawn by the promulgating
agency at any time before final action is taken by the agency or
before filing with OAH for publication in the NCAC.

The North Carolina Administrative Code (NCAC) is a
compilation and index of the administrative rules of 25 state
agencies and 38 occupational licensing boards. The NCAC
comprises approximately 15,000 letter size, single spaced pages of
material of which approximately 35% of is changed annually.
Compilation and publication of the NCAC is mandated by G.S.
150B-21.18.

The Code is divided into Titles and Chapters. Each state agency
is assigned a separate title which is further broken down by
chapters. Title 21 is designated for occupational licensing boards.

The NCAC is available in two formats.

(1) Single pages may be obtained at a minimum cost of
two dollars and 50 cents (S2.50) for 10 pages or less,
plus fifteen cents (SO. 15) per each additional page.

(2) The full publication consists of 53 volumes, totaling in
excess of 15,000 pages. It is supplemented monthly
with replacement pages. A one year subscription to the
full publication including supplements can be
purchased for seven hundred and fifty dollars
(S750.00). Individual volumes may also be purchased
with supplement service. Renewal subscriptions for
supplements to the initial publication are available.

Requests for pages of rules or volumes of the NCAC should be
directed to the Office of Administrative Hearings.

CITATION TO THE NORTH CAROLINA
REGISTER^

The North Carolina Register is cited by volume, issue, page
number and date. 1:1 NCR 101-201, April 1, 1986 refers to
Volume 1. Issue 1, pages 101 through 201 of the North Carolina
Register issued on April 1, 1986.

FOR INFORMATION CONTACT: Office of
Administrative Hearings, ATTN: Rules Division, P.O.
Drawer 27447, Raleigh, North Carolina 27611-7447, (919)
733-2678.

NORTH
CAROLINA
REGISTER

Office of Administrative Hearings

P. O. Drawer 27447

Raleigh, North Carolina 27611-7447

(919) 733-2678

Julian Mann III,

Director
James R. Scarcella Sr. ,

Deputy Director
Molly Masich,

Director ofAPA Services

Staff:

Ruby Creech,

Publications Coordinator
Teresa Kilpatrick,

Editorial Assistant
Jean Shirley,

Editorial Assistant

This publication is printed on permanent,
acid-free paper in compliance with
G.S. 125-11.13.

ISSUE CONTENTS

I. EXECUTIVE ORDERS

Executive Orders 1730

II. IN ADDITION

Voting Rights Act 1722

Wildlife Resources 1723

III. PROPOSED RULES
Administration

Auxiliary Services 1724

Commerce
Credit Union Division 1724

Environment, Health, and
Natural Resources
Environmental Management .... 1748

Health Services 1782

Wildlife Resources 1773

Human Resources

Facility Services 1725

Medical Assistance 1742

Social Services 1743

Labor
OSHA 1744

Licensing Boards

Chiropractic Examiners 1806

Practicing Psychologists 1807

Social Work, Certification Board . 1808

Secretary of State
Land Records Management .... 1792

State Treasurer
Local Government Commission . . 1795

IV. RRC OBJECTIONS 1814

V. RULES EWALIDATED BY

JUDICIAL DECISION 1819

VI. CONTESTED CASE DECISIONS

Index to ALI Decisions 1820

Text of Selected Decisions

92 DST 1776 1829

93 DHR 0343 1832

93 OSP 0438 1838

VII. CUMULATIVE INDEX 1847

NORTH CAROLINA REGISTER

Publication Schedule
(July 1993 - Max 1994)

Volume
and
Issue

Number

Issue
Date

Last Day

for

Filing

Last Day
for Elec-
tronic
Filmg

Earliest

Date for

Public

Hearing

15 days

from

notice

* End of

Required

Comment

Period

30 days

from

notice

Last Day

to Submit

to RRC

** Earliest

Effective

Date

8:7

07/01/93

06/10/93

06/17/93

07/16/93

08/02/93

08/20/93

10/01/93

8:8

07/15/93

06/23/93

06/30/93

07/30/93

08/16/93

08/20/93

10/01/93

8:9

08/02/93

07/12/93

07/19/93

08/17/93

09/01/93

09/20/93

11/01/93

8:10

08/16/93

07/26/93

08/02/93

08/31/93

09/15/93

09/20/93

11/01/93

8:11

09/01/93

08/11/93

08/18/93

09/16/93

10/01/93

10/20/93

12/01/93

8:12

09/15/93

08/24/93

08/31/93

09/30/93

10/15/93

10/20/93

12/01/93

8:13

10/01/93

09/10/93

09/17/93

10/18/93

11/01/93

11/22/93

01/01/94

8:14

10/15/93

09/24/93

10/01/93

11/01/93

11/15/93

11/22/93

01/01/94

8:15

11/01/93

10/11 '93

10/18/93

11/16/93

12/01/93

12/20/93

02/01/94

8:16

11 15 93

10/22/93

10/29/93

11/30/93

12/15/93

12/20/93

02/01/94

8:17

12/01/93

11/05/93

11/15/93

12/16/93

01/03/94

01/20/94

03/01/94

8:18

12/15/93

11/24/93

12/01/93

12/30/93

01/14/94

01/20/94

03/01/94

8:19

01/03''94

12/08/93

12/15/93

01/18/94

02/02/94

02/21/94

04/01/94

8:20

01/14/94

12/21 ; 93

12/30/93

01/31/94

02/14/94

02/21/94

04/01/94

8:21

02/01/94

01/10/94

01/18/94

02/16/94

03/03/94

03/21/94

05/01/94

8:22

02/15/94

01/25/94

02/10/94

03/02/94

03/17/94

03/21/94

05/01/94

8:23

03/01/94

02/08/94

02/15/94

03/16/94

03/31/94

04/20/94

06/01/94

8:24

03/15/94

02/22/94

03/10/94

03/30/94

04/14/94

04/20/94

06/01/94

9:1

04/04/94

03/11/94

03/18/94

04/19/94

05/04/94

05/20/94

07/01/94

9:2

04/15/94

03/24/94

03/31/94

05/02/94

05/16/94

05/20/94

07/01/94

9:3

05/02/94

04/11/94

04/18/94

05/17/94

06/01/94

06/20/94

08/01/94

9:4

05/16 '94

04/25/94

05/02/94

05/31/94

06/15/94

06/20/94

08/01/94

Xote: Time is computed according to the Rules of Civil Procedure, Rule 6.

* An agency must accept comments for at least 30 days after the proposed text is published or until the date
of any public hearing, whichever is longer. See G.S. 150B-21. 2(f) for adoption procedures.

* The "Earliest Effective Date" is computed assuming that the agency follows the publication schedule above,
that the Rules Re\iew Commission approves the rule at the next calendar month meeting after submission, and
that RRC delivers the ride to the Codifier of Rules five (5) business days before the 1st business day of the next
calendar month.

Revised 07/93

EXECUTIVE ORDERS

EXECUTIVE ORDER NUMBER 33

PERSIAN GULF WAR MEMORIAL

COMMISSION

By the authority vested in me as Governor by the
Constitution and laws of the State of North Caroli-
na, IT IS ORDERED:

Section L Establishment and Membership.

There is hereby established the Persian Gulf War
Memorial Commission whose membership shall
consist of:

1 . Two members of families who lost rela-
tives in the Persian Gulf War.

2. One member from the North Carolina
Veterans' Affairs Commission.

3. One at-large member.

4. The Secretary of the Department of
Cultural Resources or her designee.

5. The Secretary of the Department of
Administration or her designee.

6. The Secretary of the Department of
Crime Control and Public Safety or his
designee.

From among the membership, the Governor shall
appoint a chair. The Commission shall meet at the
call of the chair.

Section 2. Purpose.

The purpose of the Commission is to study the
feasibility of the construction of a Persian Gulf
War Memorial, including the areas of design, site
selection, and funding. The chair periodically
shall advise the Governor as to the progress of the
Commission.

Section 3. Administration.

Administrative support for the Commission shall
be provided by the Department of Administration.
There shall be no per diem paid to members of the
Commission; however, necessary travel and
subsistence allowance may be paid in accordance
with state law.

Section 4. Rescission.

Executive Orders 152, 160, and 167 of the
Martin Administration are hereby rescinded. This
is the successor organization to that Committee.
All of the Committee's files, records, etc., shall be
transferred to the Commission created herein.

This executive order shall be effective immedi-
ately.

Done in the Capital City of Raleigh, North

Carolina, this the 10 day of November, 1993.

EXECUTIVE ORDER NUMBER 34
HIGHWAY SAFETY COMMISSION

By the authority vested in me as Governor by the
Constitution and laws of the State of North Caroli-
na, IT IS ORDERED:

Section 1. Establishment.

The Highway Safety Commission ("Commis-
sion") is hereby established. The Commission
shall be composed of fifteen members appointed by
the Governor. Eight members shall serve two-year
initial terms and seven members shall serve four-
year initial terms. Thereafter, all terms shall be
for four years. The Governor shall designate one
of the members as Chair, who shall serve at his
pleasure.

Section 2. Meetings.

The Commission shall meet regularly at the call
of the Chair and may hold special meetings at the
call of the Chair, the Governor, or the Secretary
of Transportation.

Section 3- Administration and Expenses.

Members of the Commission shall be reimbursed
for necessary travel and subsistence expenses as
authorized by state law. Funds for reimbursement
of such expenses shall be made available from the
Governor's Highway Safety Program. The Pro-
gram will also provide administrative and staff
support services to the Commission.

Section 4. Duties.

The Commission shall have the following duties:

(a) Establish statewide highway safety goals
and objectives.

(b) Review proposed highway safety legisla-
tion.

(d) Collect, analyze, and distribute
information related to highway safety.

(e) Survey public opinion, attitudes, and
ideas on highway safety.

(f) Establish innovative highway safety
programs and activities.

(g) Advise the Governor on ways to promote
highway safety in North Carolina.

Section 5. Rescission.

Martin Administration Executive Order 12, as

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1720

EXECUTIVE ORDERS

amended, is hereby rescinded. All records of the
Governor's Highway Safety Commission created
pursuant to said Executive Order, are transferred
to the Commission created herein, which shall be
the successor to that Highway Safety Commission.

This Order shall be effective immediately.

Done in Raleigh, North Carolina, this the 23rd
day of November, 1993.

EXECUTIVE ORDER NUMBER 35

GOVERNOR'S STATE EMPLOYEE

ACTION COMMISSION

WHEREAS, State employees are an important
resource to state government; and

WHEREAS, Quality working conditions are
necessary to retain the best state employees;

NOW, THEREFORE, by the power vested in me
as Governor by the Constitution and laws of the
State of North Carolina, IT IS ORDERED:

Section 1. Establishment.

The Governor's State Employee Action
Commission is hereby established.

Section 2. Composition.

The Commission shall consist of the following
members:

her

his

(a) Governor's Ombudsman, Chair;

(b) Secretary of Administration, or
designee;

(d) Attorney General, or his designee;

(e) State Auditor, or his designee;

(f) Secretary of Commerce, or his designee;

(g) President of the North Carolina System
of Community Colleges, or his designee;

(h) Secretary of Correction, or his designee;
(i) Secretary of Crime Control and Public

Safety, or his designee;
(j) Secretary of Cultural Resources, or her

designee;
(k) Secretary of Environment, Health, and

Natural Resources, or his designee;
(1) Secretary of Human Resources, or his

designee;
(m) State Comptroller, or his designee;
(n) Commissioner of Insurance, or his

designee;
(o) Commissioner of Labor, or his designee;

(P)

(q)

(r)
(s)

(t)
(u)

(v)

(w)

(X)

(y)

(z)

Superintendent of Public Instruction, or

his designee;

Secretary of Revenue, or her designee;

Secretary of State, or his designee;

Secretary of Transportation, or his

designee;

State Treasurer, or his designee;

A representative designated by the

General Administration of the University

System;

Director of the Office of State Personnel,

or his designee;

State Budget Officer, or his designee;

Director of the Office of Administrative

Hearings, or his designee;

Executive Director of the State

Employees Association of North

Carolina, Inc.;

Director of Government Relations of the

State Employees Association of North

Carolina, Inc.

The Chair may, when she deems appropriate,
appoint sub-committees from among the
membership.

Section 3. Duties.

The duties of the Commission are:

(a) to consider the collective concerns and

policy issues of state employees and

make recommendations for change as

necessary;

to report progress annually to the

Governor.

(b)

Section 4. Meetings.

The full Commission shall meet at least once per
year, at the call of the Chair. Sub-committees
shall meet at the discretion of the Chair.

Section 5. Administrative Su pport.

The Office of the Governor shall provide the
administrative support for the Commission. No
travel or per diem expenses shall be paid to
members of the Commission out of the Office of
the Governor.

Section 6. Rescission.

Martin Administration Executive Order 89 is
hereby rescinded.

This Order shall be effective immediately.

Done in the Capital City of Raleigh, North
Carolina, this the 29th day of November, 1993.

1721

8:18

NORTH CAROLINA REGISTER

December 15, 1993

IN ADDITION

1 his Section contains public notices that are required to be published in the Register or have been
approved by the Codifier of Rules for publication.

U.S. Department of Justice

Civil Rights Division

JPT:GS:NT:emr Voting Section

DJ 166-012-3 P.O. Box 66128

93-3512 Washington, DC. 20035-6128

93-3945

93-4388

November 19, 1993

Jesse L. Warren, Esq.

City Attorney

P. O. Box 3 1 36

Greensboro, North Carolina 27402-3136

Dear Mr. Warren:

This refers to four annexations (Ordinance Nos. 93-111, 93-113, 93-131, and 93-120) and the
designation of the first three listed annexed areas to election districts of the City of Greensboro in Guilford
County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act
of 1965, as amended, 42 U.S.C. 1973c. We received your submissions on September 20, October 15, and
November 16, 1993.

The Attorney General does not interpose any objection to the specified changes. However, we note
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent
litigation to enjoin the enforcement of the changes. In addition, as authorized by Section 5, we reserve the
right to reexamine this submission if additional information that would otherwise require an objection comes
to out attention during the remainder of the sixty-day review period. See the Procedures for the
Administration of Section 5 (28 C.F.R. 51.41 and 51.43).

Sincerely,

James P. Turner

Acting Assistant Attorney General

Civil Rights Division

By:

Steven H. Rosenbaum
Chief, Voting Section

8:18 NORTH CAROLINA REGISTER December 15, 1993 1722

IN ADDITION

TITLE 15A
DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES

CHAPTER 10
WILDLIFE RESOURCES AND WATER SAFETY

JANUARY 24, 1994 HEARING

CHANGE IN SYLVA. NORTH CAROLINA HEARING LOCATION
PUBLISHED IN 8:17 NCR 1634-1662

The location of the 7:00 p.m. January 24, 1994 hearing has been changed from the Jackson County
Courthouse in Sylva, North Carolina to the Southwestern Community College (formerly known as
Southwestern Technical Institute), 275 Webster Road, Sylva, North Carolina. The Jackson County
Courthouse will be posted with signs as to the location change and someone from the North Carolina
Wildlife Resources Commission will be there to direct attendees to the new location.

€

1723 8:18 NORTH CAROLINA REGISTER December 15, 1993

PROPOSED RULES

TITLE 1 - DEPARTMENT
OF ADMINISTRATION

IVotice is hereby given in accordance with G.S.
150B-21.2 that the Department of Administration
intends to amend rule cited as 1 NCAC 4G .0212.

1 he proposed effective date of this action is
March 1, 1994.

1 he public hearing will be conducted at 10:00
a.m. on January 6, 1994 at the Department of
Administration, Room 5106D, Conference Room,
Administration Building, 116 West Jones Street,
Raleigh, NC 27603-8003.

Jxeason for Proposed Action: To clarify process
for receiving bids by electronic mediums.

Ksomment Procedures: Any interested person may
present his/her comments either in writing at the
hearing or orally at the hearing. Any person may
request information, permission to be heard, or
copies of the proposed regulations by writing or
calling David McCoy, Department of Administra-
tion, 116 West Jones Street, Raleigh, NC 27603-
8003.

CHAPTER 4 - AUXILIARY SERVICES

SUBCHAPTER 4G - SURPLUS
PROPERTY

SECTION .0200 - STATE SURPLUS
PROPERTY

.0212TELEFAX PROPOSALS (BIDS)

T e l e gmph or Telephone facsimile machine (FAX)
b+ds proposals may be considered if received prior
to sp e cifi e d the published time and date of the bid
opening. Any proposal which is faxed to the
Office of State Surplus Property must include both
the front and back of the State Surplus Property
proposal form with the proposer's signature on the
second or back page of the proposal form. The
proposer acknowledges an intent to contract by
submission of his bid by fax and waives the right
to raise any defenses to contract related to his
electronic submission of the fax proposal. Any bid
which is faxed must be received by no later than
1 :00 p.m. Eastern Standard Time on the published
bid opening date. Any bid submitt e d und e r this

Rule which is not confirmed in writing and poot
marked by midnight of the published date for
receipt of bid s will not be considered.

Statutory Authority G.S. 143-49.

TITLE 4 - DEPARTMENT
OF COMMERCE

IVotice is hereby given in accordance with G.S.
150B-21.2 that the Department of Commerce -
Credit Union Division intends to adopt rule cited
as 4 NCAC 6C .1401.

1 he proposed effective date of this action is
March 1, 1994.

1 he public hearing will be conducted at 10:00
a.m. on January 14, 1994 at the Credit Union
Division, 1 1 10 Navaho Drive, Suite 300, Raleigh,
North Carolina 27609.

lXeason for Proposed Action: To give state-
chartered credit unions the authority to become
qualified guarantors.

Vsommetti Procedures: Any interested person may
present his/her comments either in writing prior to
or at the hearing or orally at the hearing for a
maximum often minutes. Any person may request
information by writing or calling Mr. Antonio
Knox, Credit Union Division, 1 1 10 Navaho Drive,
Suite 300, Raleigh, North Carolina. Telephone
919-850-2929.

CHAPTER 6 -CREDIT
UNION DIVISION

SECTION .1400 - SIGNATURE
GUARANTEE SERVICES

.1401 SIGNATURE GUARANTEE

(a) Provided the following conditions are satis-
fied, a credit union may offer its members signa-
ture guarantee services in connection with the
transfer of securities, name change on a security
certificate, replacement of lost certificates, or
erasures on a security certificate.

(b) The credit union obtains an appropriate bond
endorsement protecting |t against any loss or
liability resulting from granting an improper
signature guarantee.

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1724

PROPOSED RULES

(c) The credit union participates in a signature approval of the Administrator before commencing
guarantee program endorsed by the Securities its signature guarantee program.

Transfer Association.

(d) The credit union obtains the prior written Statutory Authority G.S. 54-109.12; 54-

109.21(25).

TITLE 10 -DEPARTMENT OF HUMAN RESOURCES

Notice is hereby given in accordance with G.S. 150B-21.2 that the Division of Facility Services intends
to amend rules cited as 10 NCAC 3R .3001, .3020. .3030. .3032. .3040. .3050.

1 he proposed effective date of this action is March 1 . 1994.

1 he public hearing will be conducted at 10:00 a.m. on January 14. 1994 at Room 201 , Council Building,
701 Barbour Drive, Raleigh, NC.

Jxeason for Proposed Action: To adopt as permanent rules the temporary rules adopted effective December
31, 1993, for the 1994 State Medical Facilities Plan.

Lsom/nent Procedures: Written comments must be submitted no later than January 14, 1994, to Mr. Jackie
R. Sheppard, APA Coordinator, Division of Facility Services, P.O. Box 29530, Raleigh, NC 27626-0530,
telephone (919) 733-2342.

Jtl/dtior's Note: These Rules were filed as temporary amendments effective December 31, 1993 for a
period of 180 days or until the permanent rule becomes effective, whichever is sooner.

CHAPTER 3 - FACILITY SERVICES

SUBCHAPTER 3R - CERTIFICATE OF NEED REGULATIONS

SECTION .3000 - STATE MEDICAL FACILITIES PLAN

.3001 CERTIFICATE OF NEED REVIEW CATEGORIES

The agency has established m« Y2 categories of facilities and services for certificate of need review and
will determine the appropriate review category or categories for all applications submitted pursuant to 10
NCAC 3R .0304. For proposals which include more than one category, the agency may require the
applicant to submit separate applications. If it is not practical to submit separate applications, the agency
will determine in which category the application will be reviewed. The review of an application for a
certificate of need will commence in the next review schedule after the application has been determined to
be complete. The ahk J_2 categories of facilities and services are:

(1) Category A. Proposals, except those proposals included in Categories B through F and Categories
H through K L, for acute health service facilities, including but not limited to the following types
of projects: renovation, construction, equipment, and acute care services.

(2) Category B. Proposals for long-term nursing facility beds which are reviewed against the State
Medical Facilities Plan.

(3) Category C. Proposals for new psychiatric facilities; psychiatric beds in existing health care
facilities; new intermediate care facilities for the mentally retarded (ICF/MR) and ICF/MR beds
in existing health care facilities; new substance abuse and chemical dependency facilities; substance
abuse and chemical dependency beds in existing health care facilities.

(4) Category D. Proposals for new or expanded end-stage renal disease treatment facilities; and
relocations of existing dialysis stations to another county.

7725 8:18 NORTH CAROLINA REGISTER December 15, 1993

PROPOSED RULES

(5) Category E. Proposals for new or expanded inpatient rehabilitation facilities and inpatient
rehabilitation beds in other health care facilities.

(6) Category F. Proposals for new or expanded ambulatory surgical facilities except those proposals
included in Categories J or K.

(7) Category G. Proposals involving cost overruns; expansions of existing continuing care facilities
which are licensed by the Department of Insurance at the date the application is filed and are
applying under exemptions from need determinations in 10 NCAC 3R .3030; relocations within
the same county of existing health service facilities, beds or dialysis stations which do not involve
an increase in the number of health service facility beds; reallocation of beds or stations; proposals
submitted by Academic Medical Center Teaching Hospitals designated prior to January 1, 1990;
proposals for new home health offices applyins pursuant to \0 NCAC 3R .3050(b)(6); and any
other proposal not included in Categories A through F, or Category H through Category -K L.

(8) Category H. Proposals for new continuing care facilities applying for exemption under 10 NCAC
3R .3050(b)(2) and new home health agencies or offices.

(9) Category I. Proposals for converting hospital beds to nursing care under 10 NCAC 3R
.3050(b)(1).

(10) Category J. Proposals for bone marrow transplantation services, burn intensive care services,
neonatal intensive care services, open heart surgery services, solid organ transplantation services,
air ambulance equipment, cardiac angioplastic equipment, cardiac catheterization equipment, heart-
lung bypass machine, gamma knife, lithotriptors, magnetic resonance imaging scanner, positron
emission tomography scanners, and major medical equipment as defined in G.S. 131E-176 (14f).

(1 1) Category K. Proposals for diagnostic centers and oncology treatment centers.

(12) Category L. Proposals for new hospice home care programs, new hospice inpatient beds and new
hospice residential beds.

Statutory Authority G.S. 1 31 E-l 76(25); 131E-177(1); 131E-183(1).

.3020 CERTIFICATE OF NEED REVIEW SCHEDULE

The agency has established the following schedule for review of categories and subcategories of facilities
and services in 1993 1994 :
(1) Category B. Subcategory Long-Term Nursing Facilities.

County

HSA

CON Beginning
Review Date

Person
Hertford

n J\ j -fc ■-* ;-* *~k

Mitchell

Johnston

Harnett

Wayne

Duplin

Wa s hington

Wilke s

Brunswick

Pender

4
i

W
V-
VJ
\+
V4
i

V
V

March 1

April 1

August 1

August 1
March 1

October

April 1
October 1

October 1

February 1
April 1.
April L

+995

+993

W93

+994

+993

+995

+993

1994

8:18

NORTH CAROLINA REGISTER

December 15, 1993 1726

PROPOSED RULES

(2)

(3)

.4,

County

HSA

CON Beginning
Review Date

Greene

April 1, 1994

Category C. Subcategory Intermediate Care Facilities for Mentally Retarded.

Counties

HSA

CON Beginning
Review Date

Mecklenburg

Buncombe. Madison, Mitchell. Yancey

Gaston. Lincoln

Rowan. Iredell. Davie

Orange. Person. Chatham

Halifax

Moore. Hoke. Richmond. Montgomery-
An s on

Craven. Jones. Pamlico. Carteret

P4tt

Beaufort. Wa s hington. Tyrrell. Hyde. Martin

Pitt

Beaufort. Washington. Tyrrell. Hyde. Martin

Pasquotank. Chowan. Perquimans. Camden.
Dare, Currituck

H4
1

111
ii!
IV
VI

V4
V]
XI

May 1, 1993

June 1 . W93 1994

November 1_, 1994

May 1, 1994

December 1, 1994

Juno 1, 1993

June 1, 1993

December 1, 1993

December 1, 1994

June L 1994

June

1994

Category D. Subcategory End Stage Renal Disease Dialysis Stations. Dialysis station review shall
be conducted under the provisions of 10 NCAC 3R .3032.

Category H. Subcategory Home Health Agencies or Offices.

County

HSA

CON Beginning
Review Date

Davidson

For s yth

Guilford

Dafe

Iredell

Mecklenburg

Durham

Cumberland

V4
ill

ill

!Y
v

April
April

\mi

October

W9^

February 1, 1993
July 1, 1994
February L 1994
February L, 1994
February 1, 1994

1727

8:18

NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

(5) All categories for which review dates arc not specified in Subparagraph (1), (2), (3), ( 4 ) of this
Rule. If a need has been identified for any health service or facility in K) NCAC 3R .3030.
applications for certificates of need for those services will be reviewed pursuant to the following
review schedule, unless another schedule has been specified in Items £1J z 14) of this Rule.

CON

BEGINNING

REVIEW

DATE

HSA I

HSA n

HSA III

HSA rv

HSA V

HSA VI

January 1

February 1

B, G, I

A. G, E, H, I,

A, G, E, H, I, i

A, G, E, H, I, I

A, G, E, H, I,i

March 1

B, G

April 1

A, G. E, H, I
K

A, G, E, H, J,
K

B, G

May 1

C, G, F

June 1

A, C, G, F, D,

July 1

A, G,H,J,K

August 1

B, G, L

G, E, H

September 1

B, G, E, Jt-I4t L

B, G, E.JrKL

October 1

G, E, H-rJ^K

G, E, H T -4 r -K

B,G, UCL

B, G, M4 L

November 1

A, C, G, F, I K

A, C, G, F, J, K

December 1

A, C, D, G, F,

Statutory Authority G.S. 131 E-l 76(25); 131E-177(I); 131 E-l 83(1).

.3030 FACILITY AND SERVICE NEED DETERMINATIONS

Facility and service need determinations are shown in Items (1) - <44-) (16) of this Rule. The need
determinations ar e s ubj e ct to r e duction s shall be revised continuously throughout 1994 pursuant to 10 NCAC
3R .3040. bas e d on c e rtificat e s of n ee d award e d aft e r S e pt e mb e r 17, 1992:

(1) Category A. Acute Health Service Facilities. It is determined that there is no need for additional
acute care beds and no reviews are scheduled.

C.J. Harris Community Hospital System HSA I 15 b e d s

(2) Category B. Long-Term Nursing Facility Beds.

Number of Nursing

County

HSA

Beds Needed

Person

Hertford

Macon

Mitchell

Johnston

§0

Harnett

8:18

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December 15, 1993

1728

PROPOSED RULES

Number

of Nursing

County

HSA

Beds

Needed

Washington

Wilkes

Brunswick

Pender

Greene

(3) Category C.

(a) Psychiatric Facility Beds. It is determined that there is no need for additional psychiatric beds
and no reviews are scheduled.

(b) Intermediate Care Facilities for Mentally Retarded Beds.

Counties

HSA

Mecklenburg

Buncombe, Madison, Mitchell, Yancey

Gaston, Lincoln

Rowan, Iredell, Davie

Orange, Person, Chatham

Halifax

Moore, — Hoke, — Richmond, Montgomery,
An s on

Craven, Jones. Pamlico. Carteret

Pitt

Beaufort, Washington, Tyrrell, Hyde.

Martin

Pasquotank, Chowan, Perquimans,
Camden, Dare, Currituck

III

VI
VI

Need

Determination

Child

Adult

6 12

+86

(c) Substance Abuse and Chemical Dependency Facility Treatment Beds. It is determined that there
is no need for additional chemical dependency treatment beds and no reviews are scheduled.

(4) Category D. End-Stage Renal Disease Treatment Facilities. Need for end-stage renal dialysis
facilities or stations is determined as is provided in 10 NCAC 3R .3032.

(5) Category E. Inpatient Rehabilitation Facility Beds. It ]s determined that there is no need for
additional rehabilitation beds and no reviews are scheduled.

1729

8:18

NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

UCA
TTCTTT

gfwJQ

ffl

34-

(6) Category F. Ambulatory Surgery Facilities Operating Rooms . It is determined that there is no
need for additional facilities ambulatory surgery operating rooms and no reviews are scheduled^
except that a Rural Primary Care Hospital designated by the N.C. Office of Rural Health Services
pursuant to Section 1829(f) of the Social Security Act may apply for a certificate of need to
convert existing operating rooms for use as a freestanding ambulatory surgical facility.

(7) Category H. New Home Health Agencies or Offices.

Number of Agencies

County

HSA

Off!

ces Needed

Davidson

Guilford

L'flFC

Iredell

Mecklenburg

ii!

Durham

Cumberland

(8) Category I Open heart surgery operating rooms services. It is determined that there is no need
for additional rooms and no reviews arc scheduled, open heart surgery services and no reviews are
scheduled; except that a health service facility that currently provides these services may apply for
a certificate of need to expand its existing services to meet specific needs if utilization of the health
service facility's existing open heart surgery services exceeds 80% of capacity.

(9) Category JL Heart-Lung Bypass Machines. It js determined that there ]s no need for additional
heart-lung bypass machines and no reviews are scheduled; except that a health service facility that
currently provides open heart surgery services may apply for a certificate of need to acquire
additional heart-lung bypass machinery if the existing heart-lung machinery used by the health
service facility |s utilized at or above 80% of ca pacity.

(19) Category I Cardiac Angioplasty Equipment. It \s determined that there is no need for additional
cardiac angioplasty equipment and no reviews are scheduled; except that a health service facility
that currently provides cardiac angioplasty services may apply for a certificate of need to acquire
additional cardiac angioplasty equipment jf utilization of cardiac angioplasty equipment used by
the health service facility exceeds 80% of capacity.

(1 1) Category L Cardiac Catheterization Equipment. It is determined that there is no need for
additional fixed or mobile cardiac catheterization equipment and no reviews are scheduled; except
that a health service facility that currently provides cardiac catheterization services may apply for

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1730

PROPOSED RULES

a certificate of need to acquire additional cardiac catheterization equipment if utilization of cardiac
catheterization equipment used by the health service facility exceeds 80% of capacity,

(12) {£) Category L Solid organ transplant services shall be developed and offered only by end
allogeneic bone marrow transplant program s — It is determined that those programs arc needed only
m academic medical center teaching hospitals as defined under designated in 10 NCAC 3R
.3050(a)(3). It is determined that there is no need for new solid organ transplant services and no
reviews are scheduled.

f-H?} Gamma knife — It is determined that there is no need for gamma knife stereotactic radiosurgery

services in any facility and no reviews are s ch e dul e d.

( 13) Category J. Bone Marrow Transplantation Services. It is determined that allogeneic bone marrow
transplantation services shall be developed and offered only by academic medical center teaching
hospitals as designated in 10 NCAC 3R .3050(a)(3). It is determined that there is no need for
additional allogeneic or autologous bone marrow transplantation services and no reviews are
scheduled.

^4-4-) Positron — Emis s ion — Tomography h — is — determined — that there — is — no — need — fef — additional

cyclotron based positron emission tomography capacity — in any — facility and — ne — reviews arc
scheduled.

i 14i Category I Gamma Knife Equipment. It is determined that there is no need for gamma knife
equipment and no reviews are scheduled.

( 15) Category J. Positron Emission Tomography Scanner. It ]s determined that there is no need for
additional positron emission tomography scanners for purposes other than research and no reviews
are scheduled.

(16) Category L.

(a) New Hospice Home Care Programs.

Number of New

Hospice

Home Care

County

HSA

Programs Needed

Graham

McDowell

Swain

Cumberland

Robeson

Edgecombe

-L

Hyde

-L

Onslow

Wayne

(b) New Hospice Inpatient Beds (Single Counties). It is determined that the following single counties
have a need for six or more new Hospice Inpatient Beds:

Number of New

Hospice Inpatient

County

HSA

Beds Needed

Forsyth

Guilford

1731

8:18

NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

Number of New

Hospice Inpatient

County

HSA

Beds Needed

Wake

(c) New Hospice Inpatient Beds (Contiguous Counties). It has been determined that any combination
of two or more contiguous counties taken from the following list shall have a need for new
hospice inpatient beds if the combined bed deficit for the grouping of contiguous counties totals
six or more beds. Each county in a grouping of contiguous counties must have a deficit of at
least one and no more than five beds. The need for the grouping of contiguous counties shall
be the sum of the deficits in the individual counties. For purposes of this rule, "contiguous
counties" shall mean a grouping of North Carolina counties which includes the county in which
the new hospice inpatient facility is proposed to be located and any one or more of the
immediately surrounding North Carolina counties which have a common border with that county,
even if the borders only touch at one point. No county may be included in a grouping of
contiguous counties unless it is listed in the following table:

Hospice Inpatient

County

HSA

Bed Deficit

Alexander

Ashe

Avery

Buncombe

Burke

Cleveland

Henderson

Madison

Polk

Rutherford

Transylvania

Watauga

Wilkes

Yancey

Alamance

Caswell

Davidson

Randolph

Rockingham

Stokes

Surrv

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1732

PROPOSED RULES

Hospice Inpatient

County

HSA

Bed Deficit

Cabarrus

Gaston

Iredell

Mecklenburg

JJJ

Rowan

Stanly

Union

ii!

Chatham

Durham

Johnston

Lee

Orange

Bladen

Brunswick

Columbus

Harnett

Moore

New Hanover

Pender

Richmond

Scotland

Bertie

Duplin

Greene

Hertford

Nash

Northampton

Onslow

Pitt

Wayne

Wilson

Statutory Authority G.S. 131E-176(25); 131E-177(1); 131E-183(1).

1733

8:18

NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

.3032 DIALYSIS STATION NEED DETERMINATION

(a) The Medical Facilities Planning Section (MFPS) shall determine need for dialysis stations and facilities
two times each calendar year, and shall make a report of such determinations available to all who request
it. This report shall be called the MFPS Semiannual Dialysis Report (SDR). Data to be used for such
determinations, and their sources, are as follows:

(1) Numbers of dialysis patients, by type, county and facility, from the Southeastern Kidney Council,
Inc. (SEKC) and the Mid-Atlantic Renal Coalition, Inc.

(2) Certificate of need decisions, decisions appealed, appeals settled and awards, from the Certificate
of Need Section, DFS.

(3) Facilities certified for participation in Medicare, from the Certification Section, DFS.

(4) Need determinations for which certificate of need decisions have not been made, from MFPS
records.

Need determinations in this report shall be an integral part of the State Medical Facilities Plan, as provided
in G.S. 131E-183.

(b) Need for dialysis stations and facilities shall be determined as follows:

(1) County Need

(A) The average annual rate (%) of change in total number of dialysis patients resident in each
county from the end of 4988 1989 to the end of 4992 1993 is multiplied by the county's 4992
1993 year end total number of patients in the MFPS Semiannual Dialysis Report (SDR), and
the product is added to each county's most recent total number of patients reported in the SDR.
The sum is the county's projected total 1993 1994 patients.

(B) The percent of each county's total patients who were home dialysis patients at the end of 4992
1993 is multiplied by the county's projected total 1993 1994 patients, and the product is
subtracted from the county's projected total 1993 1994 patients. The remainder is the county's
projected 1993 1994 in-center dialysis patients.

(C) The projected number of each county's 1993 1994 in-center patients is divided by 3.2. The
dividend quotient is the projection of the county's 1993 1994 in-center dialysis stations.

(D) From each county's projected number of 1993 1994 in-center stations is subtracted the county's
number of stations certified for Medicare, CON-approved and awaiting certification, awaiting
resolution of CON appeals, and the number represented by need determinations in previous
State Medical Facilities Plans or Semiannual Dialysis Reports for which CON decisions have
not been made. The remainder is the county's 4993 1994 station need projection.

(E) If a county's 1993 1994 station need projection is s even 10 or greater and the SDR shows that
utilization of each dialysis facility in the county is 80% or greater, the 1993 1994 station need
determination is the same as the 1993 1994 station need projection.

(2) Facility Need. A dialysis facility located in a county whose unmet need in the reference
Semiannual Dialysis Report (SDR) is less than 7 JO stations is determined to need additional
stations to the extent that:

(A) Its utilization, reported in the SDR, is greater than 3.2 patients per station.

(B) Such need, calculated as follows, is reported in an application for a certificate of need:

(i) The facility's number of in-center hemodialysis patients on December 31, 1991 reported
in the previous SDR (SDR ,) is subtracted from the number of such in-center hemodialysis
patients on December 31, 1992 and the remainder i s divided by the number of in center
patients on December 31, 1991. reported in the current SDR (SDR ^). The difference js
multiplied by 2 to project the net in-center change for one year. Divide the projected net
in-center change for the year by the number of in-center patients from SDR , to determine
the projected annual growth rate.
(ii) The dividend quotient from Subpart ib)(2)(B)(i) of this Rule is divided by 12.

(iii) The dividend quotient from Subpart £b_)(2)(B)(ii) of this Rule is multiplied by the number
of months from the most recent month reported in the SDR until the end of calendar 1993
1994 .

(iv) The product from Subpart £bJ(2)(B)(iii) of this Rule is multiplied by the number of the

8:18 NORTH CAROLINA REGISTER December 15, 1993 1734

PROPOSED RULES

facility's in-center patients reported in the SDR and that product is added to such reported
number of in-center patients,
(v) The sum from Subpart (b)(2)(B)(iv) of this Rule is divided by 3.2, and from the dividend
quotient is subtracted the facility's current number of certified and pending stations as
recorded in the SDR. The remainder is the number of stations needed.
(C) The facility may apply to expand to meet the need established in Subpart (b)(2)(B)(v) of this
Rule , up to a maximum of seven 10 stations.
The schedule for publication of the Medical Facilities Planning Section's Semiannual Dialysis Report (SDR)
and for receipt of certificate of need applications based on each issue of this report in 1993 1994 shall be
as follows:

Date for Receipt of Publication Receipt of CON Beginning

Period Ending SEKC Report of SDR Applications Review Dates

Dec. 31, 1992 Feb. 28, 1993 March 19, 1993 May 1 4 , 1993 June 1, 1993

Dec. 31, 1993 Feb. 28, 1994 March 19, 1994 May 16, 1994 June 1, 1994

June 30, 1993 Aug. 31, 1993 Sept. 20, 1993 Nov. 15, 1993 Dec. 1, 1993

June 30, 1994 Aug. 31, 1994 Sept. 20, 1994 Nov. 15. 1994 Dec. 1, 1994

An application for a certificate of need pursuant to this Rule shall be accepted only if it demonstrates a need
by utilizing one of the methods of determining need outlined in this Rule.

Statutory- Authority G.S. 131E-176(25); 131E-177(1); 131E-183(1).

.3040 REALLOCATIONS AND ADJUSTMENTS

(a) Reallocation s . REALLOCATIONS.

(1 ) Reallocations shall be made only to the extent that 10 NCAC 3R .3030 determines that a need
exists after the inventory is revised and the need determination is recalculated.

(2) Beds or services which are reallocated once in accordance with this policy shall not be
reallocated again. Rather, the Medical Facilities Planning Section shall make any necessary
changes in the next published amendment to J_0 NCAC 3R .3030.

(3) i4-j Appeals of Certificate of Need Decisions on Applications. Need determinations of beds or
services for which the CON Section decision has been appealed shall not be reallocated until the
appeal is resolved.

(A) Appeals Resolved Prior to September 17: If an appeal is resolved in the calendar year prior
to September 17, the beds or services shall not be reallocated by the CON Section; rather the
Medical Facilities Planning Section shall make the necessary changes in the next amendment
to 10 NCAC 3R .3030.

(B) Appeals Resolved On Or After September 17: If the appeal is resolved on or after September
17 in the calendar year, the beds or services shall be made available for a review period to be
determined by the CON Section, but beginning no earlier than 60 days from the date that the
appeal is resolved. Notice shall be given by the Certificate of Need Section no less than 45
days prior to the due date for receipt of new applications.

Dialysis stations that are withdrawn, relinquished, not applied for or decertified shall not be
reallocated. Instead, any necessary redetermination of need shall be made in the next scheduled
publication of the Semiannual Dialysis Report. Reallocation s s hall be made only to the extent
that 10 NCAC 3R .3030 determines that a need exists after the inventory i s revi s ed and the need
determination i s r e calculated. — B ed s or s ervices which are reallocated onee in accordance with
this policy shall not be reallocated again. — Rather, the Medical Facilities Planning Section shall
make any nece s sary changes in the next published amendment to 10 NCAC 3R .3030.

1735 8:18 NORTH CAROLINA REGISTER December 15, 1993

PROPOSED RULES

(4) (3) Withdrawals and Relinquishments. A need determination for which a certificate of need is
issued, but is subsequently withdrawn or relinquished, is available for a review period to be
determined by the Certificate of Need Section, but beginning no earlier than 60 days from:

(A) the last date on which an appeal of the notice of intent to withdraw the certificate could be filed
if no appeal is filed,

(B) the date on which an appeal of the withdrawal is finally resolved against the holder, or

(C) the date that the Certificate of Need Section receives from the holder of the certificate of need
notice that the certificate has been voluntarily relinquished.

Notice of the scheduled review period for the reallocated services or beds shall be given no less than 45
days prior to the due date for submittal of the new applications.

(5) (3) Need Determinations for which No Applications are Received

(A) Services or Beds with Scheduled Review on or Before September 17 October _1: Need
determinations, or portions of such need, for services or beds in this category include long-term
nursing care beds, home health agencies or offices, dialysis stations, hospice home care
programs, hospice inpatient beds, and beds in intermediate care facilities for the mentally
retarded (ICF/MR) with the exception of ICF/MR allocation s need determinations with a
scheduled review that begins after September 17 October 1. The Certificate of Need Section
shall not reallocate the services or beds in this category for which no applications were
received, because the Medical Facilities Planning Section will have sufficient time to make any
necessary changes in the determinations of need for these services or beds in the next annual
amendment to 10 NCAC 3R .3030.

(B) Services or Beds with T-w» Scheduled Review Period s and ICF/MR Fall Review. After October
J_^ Need determinations for services or beds in this category include acute care beds,
rehabilitation beds, ambulatory surgery operating rooms, medical technology, psychiatric beds,
substance abuse beds, and ICF/MR beds^ bone marrow transplantation services, burn intensive
care services, neonatal intensive care services, open heart surgery services, solid organ
transplantation services, air ambulance equipment, cardiac angioplastic equipment, cardiac
catheterization equipment, heart-lung bypass machine, gamma knife, lithotriptors, magnetic
resonance imaging scanner, positron emission tomography scanners, major medical equipment
as defined in G.S. 131E-176(14f), diagnostic centers and oncology treatment centers for which
review commences after September 17 October I. A need determination in this category for
which no application has been received by the last due date for submittal of applications shall
be available to be applied for in the second Category G review period in the next calendar year
for the applicable HSA. Notice of the scheduled review period for the reallocated beds or
services shall be given by the Certificate of Need Section no less than 45 days prior to the due
date for submittal of new applications.

(6) {4) Need Determinations not Awarded because Application Disapproved.

(A) Disapproval prior to September 17: Need determinations or portions of such need for which
applications were submitted but disapproved by the Certificate of Need Section before
September 17, shall not be reallocated by the Certificate of Need Section. Instead the Medical
Facilities Planning Section shall make the necessary changes in the next annual amendment to
10 NCAC 3R .3030 if no appeal is filed.

(B) Disapproval on or After September 17: Need determinations or portions of such need for
which applications were submitted but disapproved by the Certificate of Need Section on or
after September 17, shall be reallocated by the Certificate of Need Section. A need in this
category shall be available for a review period to be determined by the Certificate of Need
Section but beginning no earlier than 95 days from the date the application was disapproved,
if no appeal is filed. Notice of the scheduled review period for the reallocation shall be mailed
no less than 80 days prior to the due date for submittal of the new applications.

(b) CHANGES IN NEED DETERMINATIONS. Need determination s in 10 NCAC 3R .3030 and .3032
s hall be revised after the effective date of this Rule a s nece ss ary to reflect:

fB dialysis stations decertified after September 17, 1992

{3} health service facilities or beds deliccnsed after September 17, 1992

0) psychiatric bed s licen s ed pursuant to G.S. 13 IE 1 84 (c),

f4) error s in inventories on which need determinations in 10 NCAC 3R .3030 arc based.

8:18 NORTH CAROLINA REGISTER December 15, 1993 1736

PROPOSED RULES

( 1 ) The need determinations in JO NCAC 3R .3030 and .3032 shall be revised continuously
throughout 1994 to reflect all changes in the inventories of:

(A) the health services listed at G.S. 131E-176(16)(f);

(B) health service facilities;

(D) dialysis stations;

(E) the equipment listed at G.S. 131E-176(16)(fl ); and

(F) mobile medical equipment

as those changes are reported to the Medical Facilities Planning Section. However, need
determinations in JO NCAC 3R .3030 or .3032 shall not be reduced if the relevant inventory ]s
adjusted upward 30 days or less prior to the first day of the applicable review period.

(2) Inventories shall be updated to reflect:

(A) decertification of home health agencies or offices and dialysis stations;

(B) delicensure of health service facilities and health service facility beds;

(D) elimination or reduction of a health service as listed at G.S. 131E-176(16)(f);

(E) psychiatric beds licensed pursuant to G.S. 1 3 1 E- 1 84(c);

(F) certificates of need awarded . relinquished, or withdrawn, subsequent to the preparation of the
inventories m the State Medical Facilities Plan; and

(G) corrections of errors in the inventory as reported to the Medical Facilities Planning Section.

(3) Any person who is interested in applying for a new institutional health service for which a need
determination is made in JO NCAC 3R .3030 or .3032 may obtain information about updated
inventories and need determinations from the Medical Facilities Planning Section.

te) — REVIEW PERIODS. — Determinations of neod for nursing facility beds, home health agencies or
office s . ICF/MR beds are available to be applied for only once during th e calendar year. — The review cycles
for these allocation s are s pecified in 10 NCAC 3R .3020 (1) ( 4 ). All other allocations are available for the
certificate of need review cycles specified in 10 NCAC 3R .3020 (5).

Statutory Authority G.S. 131E-176(25); 131E-177(I); 131 E-l 83(1).

.3050 POLICIES
(a) ACUTE CARE FACILITIES AND SERVICES

(1) Use of Licensed Bed Capacity Data for Planning Purposes. For planning purposes the number
of licensed beds shall be determined by the Division of Facility Services in accordance with
standards found in 10 NCAC 3C .1510 - Bed Capacity.

(2) Utilization of Acute Care Hospital Bed Capacity. Conversion of underutilized hospital space to
other needed purposes shall be considered to be more cost efficient than an alternative to new
construction , unle s s s hown otherwise . Hospitals falling below utilization targets are shown in
10 NCAC 3R .3050(a)(4) are assumed to have underutilized space. Any such hospital proposing
new construction must clearly demonstrate that it is more cost-effective than conversion of
existing space.

(3) Exemption from Plan Provisions for Certain Academic Medical Center Teaching Hospital
Projects. Projects for which certificates of need are sought by academic medical center teaching
hospitals may qualify for exemption from provisions of 10 NCAC 3R .3030.

(A) For purposes of this Rule, the following facilities are designated the State Medical Facilitie s
Planning Section shall — designate as a« Academic Medical Center Teaching Hospitals Hospital
any facility who s e application for such designation demon s trat e s the following characteristic s
of the hospital :

fA-) — Serves as a primary teaching s ite for a school of m e dicine and at least one other health
professional school, providing undergraduate, graduate and postgraduate education.

<-B) — Houses extensive basic medical science and clinical research program s , patients and equipment.

f€-) — Serves the treatment needs of patients from a broad geographic area through multiple medical
s pecialtie s .
(i) Duke University Hospital.

1737 8:18 NORTH CAROLINA REGISTER December 15, 1993

PROPOSED RULES

- 49

- 99

100

- 199

200

- 699

700

(ii) Carol inas Medical Center,
(iii) North Carolina Baptist Hospitals,
(iv) Pitt County Memorial Hospital,
(v) University of North Carolina Hospitals.
(B) Exemption from the provisions of 10 NCAC 3R .3030 shall be granted to projects submitted
by Academic Medical Center Teaching Hospitals designated prior to January 1, 1990 which
projects comply with one of the following conditions:
(i) Necessary to complement a specified and approved expansion of the number or types of
students, residents or faculty, as certified by the head of the relevant associated professional
school; or
(ii) Necessary to accommodate patients, staff or equipment for a specified and approved
expansion of research activities, as certified by the head of the entity sponsoring the
research; or
(iii) Necessary to accommodate changes in requirements of specialty education accrediting
bodies, as evidenced by copies of documents issued by such bodies.

(4) Reconversion to Acute Care. Facilities redistributing beds from acute care bed capacity to
rehabilitation or psychiatric use shall obtain a certificate of need to convert this capacity back
to acute care. Application for such reconversion to acute care of beds converted to psychiatry or
rehabilitation shall be evaluated against the hospital's utilization in relation to target occupancies
used in determining need shown in 10 NCAC 3R .3030 without regard to the acute care bed need
shown in the Rule. These target occupancies are:

Licensed Bed Capacity Percent Occupancy

65
70
75
80
81.5

(5) Multi-Specialty Ambulatory Surgery. After applying other required criteria, when superiority
among two or more competing ambulatory surgical facility certificate of need applications is
uncertain, favorable consideration shall be given to _^multi-specialty facilities programs" over
single ^specialty facilitie s programs" in areas where need is demonstrated in 10 NCAC 3R .3030.
A multi-specialty ambulatory surgical facility program means a facility program providing
services in at least three of the following areas: gynecology, otolaryngology, plastic surgery,
general surgery, ophthalmology, orthopedicSj urology, and oral surgery. A new multi s pecialty
An ambulatory surgical facility shall have a minimum of two operating room3, and no fewer than
twe provide at least two designated operating rooms with general anesthesia capabilities^ and at
least one designated recovery room .

(6) Expansion of the Distribution of Inpatient Rehabilitation Beds System . After applying other
required criteria, when superiority among two or more competing rehabilitation facility certificate
of need applications is uncertain, favorable consideration shall be given to applicants proposing
establishment of inpatient proposals that make rehabilitation programs so as to make these
s ervice s available to the undcr s crved populations, services more accessible to patients and their
families or are part of a comprehensive regional rehabilitation network.

f7-) Ambulatory Surgery Need Determination Exclusion. The determination of need for ambulatory

surgical operating rooms defined in NCAC 3R .3030(6) s hall not be considered in the review of
an application for a certificate of need to convert existing operating rooms to a freestanding
ambulatory s urgical facility, if submitted by a hospital de s ignated as a Rural Primary Care
Hospital by the N. C. Office of Rural Health Services pursuant to section 1820(f) of the Social
Security Act.
(b) LONG-TERM CARE FACILITIES AND SERVICES.
(1) Provision of Hospital-Based Long-Term Nursing Care. A certificate of need may be issued to
a hospital which is licensed under G.S. 13 IE, Article 5, and which meets the conditions set forth
below and other relevant rules, to convert up to ten beds from its licensed acute care bed capacity

8:18 NORTH CAROLINA REGISTER December 15, 1993 1738

PROPOSED RULES

for use as hospital-based long-term nursing care beds without regard to determinations of need
in 10 NCAC 3R .3030 if the hospital:

(A) is located in a county which was designated as non-metropolitan by the U. S. Office of
Management and Budget on January 1 , 1993 1994 ; and

(B) on January 1, 1993 1994 , had a licensed acute care bed capacity of 150 beds or less.

The certificate of need shall remain in force as long as the Department of Human Resources
determines that the hospital is meeting the conditions outlined in this Rule.
"Hospital-based long-term nursing care" is defined as long-term nursing care provided to a
patient who has been directly discharged from an acute care bed and cannot be immediately
placed in a licensed nursing facility because of the unavailability of a bed appropriate for the
individual's needs. Determination of the patient's need for hospital-based long-term nursing
care shall be made in accordance with existing criteria and procedures for determining need for
long-term nursing care administered by the Division of Medical Assistance and the Medicare
program .

Beds developed under this Rule are intended to provide placement for residents only when
placement in other long-term care beds is unavailable in the geographic area. Hospitals which
develop beds under this Rule shall discharge patients to other nursing facilities with available
beds in the geographic area as soon as possible where appropriate and permissible under
applicable law. Necessary documentation including copies of physician referral forms (FL 2)
on all patients in hospital-based nursing units shall be made available for review upon request
by duly authorized representatives of licensed nursing facilities.

For purposes of this Rule, beds in hospital-based long-term nursing care shall be certified as
a "distinct part" as defined by the Health Care Financing Administration. Beds in a "distinct
part" shall be converted from the existing licensed bed capacity of the hospital and shall not
be reconverted to any other category or type of bed without a certificate of need.
An application for a certificate of need for reconverting beds to acute care shall be evaluated
against the hospital's service needs utilizing target occupancies shown in 10 NCAC 3R
.3050(a)(4), without regard to the acute care bed need shown in 10 NCAC 3R .3030. A
certificate of need issued for a hospital-based long-term nursing care unit shall remain in force
as long as the following conditions are met:
(i) the beds shall be certified for participation in the Title XVIII (Medicare) and Title XIX

(Medicaid) Programs;
(ii) the hospital discharges residents to other nursing facilities in the geographic area with

available beds when such discharge is appropriate and permissible under applicable law;
(iii) patients admitted shall have been acutely ill inpatients of an acute hospital or its satellites
immediately preceding placement in the unit.
The granting of beds for hospital-based long-term nursing care shall not allow a hospital to
convert additional beds without first obtaining a certificate of need. Where any hospital, or the
parent corporation or entity of such hospital, any subsidiary corporation or entity of such
hospital, or any corporation or entity related to or affiliated with such hospital by common
ownership, control or management:
(I) applies for and receives a certificate of need for long-term care bed need determinations

in 10 NCAC 3R .3030; or
(II) currently has nursing home beds licensed as a part of the hospital under G.S. 131E,

Article 5; or
(III) currently operates long-term care beds under the Federal Swing Bed Program (PL.
96-499),
such hospital shall not be eligible to apply for a certificate of need for hospital-based
long-term care nursing beds under this Rule. Hospitals designated by the State of North
Carolina as Rural Primary Care Hospitals pursuant to section 1820(f) of the Social Security
Act, as amended, which have not been allocated long-term care beds under provisions of
G.S. 13 IE 175-190, may apply to develop beds under this Rule. However, such hospitals
shall not develop long-term care beds both to meet needs determined in 10 NCAC 3R .3030
and this Rule.
Beds certified as a "distinct part" under this Rule shall be noted as such in 10 NCAC 3R

1739 8:18 NORTH CAROLINA REGISTER December 15, 1993

PROPOSED RULES

.3000 and shall be counted in the inventory of existing long-term care beds and used in the
calculation of unmet long-term care bed need for the general population of a planning area.
Applications for certificates of need pursuant to this Rule shall be accepted only for the
February 1 review cycle. Beds awarded under this Rule shall be deducted from need
determinations for the county as shown in 10 NCAC 3R .3030. Continuation of this Rule
shall be reviewed and approved by the Department of Human Resources annually.
Certificates of need issued under policies analogous to this Rule in State Medical Facilities
Plans subsequent to the 1986 Plan are automatically amended to conform with the
provisions of this Rule at the effective date of this Rule. The Department of Human
Resources shall monitor this program and ensure that patients affected by this Rule are
receiving appropriate services, and that conditions under which the certificate of need was
granted are being met.

(2) Plan Exemption for Continuing Care Facilities.

(A) Qualified continuing care facilities may include from the outset, or add or convert bed capacity
for long-term nursing care without regard to the bed need shown in 10 NCAC 3R .3030. To
qualify for such exemption, applications for certificates of need shall show that the proposed
long-term nursing bed capacity:

(i) {A) Will only be developed concurrently with, or subsequent to construction on the same
site, of facilities for both of the following levels of care:
(I) (t) independent living accommodations (apartments and homes) for persons who are able
to carry out normal activities of daily living without assistance; such accommodations
may be in the form of apartments, flats, houses, cottages, and rooms within a suitable
structure;
(II) fit) domiciliary care (home for the aged) beds for use by persons who, because of age
or disability require some personal services, incidental medical services, and room and
board to assure their safety and comfort.
(ii) fB) Will be used exclusively to meet the needs of persons with whom the facility has
continuing care contracts (in compliance with the Department of Insurance statutes and
regulations) who have lived in a non-nursing unit of the continuing care facility for a period
of at least 30 days. Exceptions shall be allowed when one spouse or sibling is admitted to
the nursing unit at the time the other spouse or sibling moves into a non-nursing unit, or
when the medical condition requiring nursing care was not known to exist or be imminent
when the individual became a party to the continuing care contract. Financial consideration
paid by persons purchasing a continuing care contract shall be equitable between persons
entering at the "independent living" and "domiciliary" levels of care.
(iii) {€-) Reflects the number of beds required to meet the current or projected needs of residents
with whom the facility has an agreement to provide continuing care, after making use of
all feasible alternatives to institutional nursing care.
(iv) {©) Will not be certified for participation in the Medicaid program.

(B) One half of the long-term nursing beds developed under this exemption shall be excluded from
the inventory used to project bed need for the general population. Certificates of need issued
under policies analogous to this Rule in State Medical Facilities Plans subsequent to the 1985
SMFP are automatically amended to conform with the provisions of this Rule at the effective
date of this Rule. Certificates of need awarded pursuant to the provisions of Chapter 920,
Session Laws 1983, or Chapter 445, Session Laws 1985 shall not be amended except by law.

(3) Development of Home Health Services. After applying other required criteria, when superiority
among two or more competing home health agency or office certificate of need applications is
uncertain, favorable consideration shall be given to proposals which:

(A) provide an expanded scope of services (including nursing, physical therapy, speech therapy,
and home health aide service);

(B) provide the widest range of treatments within a given service; and

(4) Need Determination Upon Termination of County's Sole Home Health Agency. When a home
health agency's board of directors, or in the case of a public agency, the responsible public body.

8:18 NORTH CAROLINA REGISTER December 15, 1993 1740

PROPOSED RULES

votes to discontinue the agency's provision of home health services; and

(A) the agency is the only home health agency with an office physically located in the county; and

(B) the agency is not being lawfully transferred to another entity;

need for a new home health agency or office in the county is thereby established through this

Rule.
Following receipt of written notice of such decision from the home health agency's chief
administrative officer, the Certificate of Need Section shall give public notice of the need for one
home health agency or office in the county, and the dates of the review of applications to meet
the need. Such notice shall be given no less than 45 days prior to the final date for receipt of
applications in a newspaper serving the county and to home health agencies located outside the
county reporting serving county patients in the most recent licensure applications on file.

(5) Availability of Dialysis Care. After applying other required criteria, when superiority among
two or more competing dialysis facility or station certificate of need applications is uncertain,
favorable consideration shall be given to applicants proposing to provide or arrange for:

(A) home training and backup for patients suitable for home dialysis in the ESRD dialysis facility
or in a facility that is a reasonable distance from the patient's residence;

(B) ESRD dialysis service availability at times that do not interfere with ESRD patients' work
schedules;

(6) Need for an Additional Home Health Agency Office Within an Existing Home Health Service
Area. When an existing home health agency is serving 150 home health patients or more on an
annual basis (as documented on the agency's 1993 most recent license renewal application or as
documented and certified by the agency for a 12 month period to the satisfaction of the Division
of Facility Services ) in a county in its authorized service area as defined in 10 NCAC 3R .0320
in which the agency has no home health office, the agency shall be allowed to apply for a CON
to open a home health agency office within that county. Such application must document to the
satisfaction of the Certificate of Need Section that the additional home health agency office will
provide improved client service at a lower cost. The additional home health agency office shall
only be allowed to provide services within the agency's authorized service area. No applications
shall be received under this provision for additional home health agency offices in counties
outside of a home health agency's authorized service area or for any county within the service
area where the agency already has one or more home health agency offices or where the agency
is not serving at least 150 home health patients on an annual basis. This Rule shall allow no
expansion of home health services outside of the agency's service area as defined by 10 NCAC
3R .0320.

( 1 ) Appropriate Provision of Care. Hospitalization shall be considered the most restrictive form of
therapeutic intervention or treatment and shall be used only when this level of 24-hour care and
supervision is required to meet the patient's health care needs.

(2) Linkages Between Treatment Settings. Anyone applying for a certificate of need for psychiatric,
ICF/MR or substance abuse beds shall document that the affected area mental health,
developmental disabilities and substance abuse authorities have been contacted and invited to
comment on the proposed services, relative to their endorsement of the project and involvement
in the development of a client admission and discharge agreement.

(3) Transfer of Beds from State Psychiatric Hospitals to Community Facilities. Beds in the State
psychiatric hospitals used to serve short-term psychiatric patients may be relocated to community
facilities. However, before beds are transferred out of the State psychiatric hospitals, appropriate
services and programs shall be available in the community. The process of transferring beds
shall not result in a net change in the number of psychiatric beds available, but rather in the
location of beds counted in the existing inventory. State hospital beds which are relocated to
community facilities shall be closed within ninety days following the date the transferred beds
become operational in the community. Facilities proposing to operate transferred beds shall
commit to serve the type of short-term patients normally placed at the State psychiatric hospitals.
To help ensure that relocated beds will serve those persons who would have been served by the
State psychiatric hospitals, a proposal to transfer beds from a State hospital shall include a

1741 8:18 NORTH CAROLINA REGISTER December IS, 1993

PROPOSED RULES

written memorandum of agreement between the area MH/DD/SAS program serving the county
where the beds are to be located, the Secretary of Human Resources, and the person submitting
the proposal.

(4) Inpatient Psychiatric Services for Children and Adolescents. Inpatient psychiatric treatment of
children and adolescents which is more extensive than stabilization shall occur in units which are
separate and distinct from both adult psychiatric units and general pediatric units. In order to
maximize efficiency and ensure the availability of a continuum of care, psychiatric beds for
children and adolescents shall be developed in conjunction with outpatient treatment programs.

(§} Adju s tment to Psychiatric Bed Allocation s . — The Medical Facilities Planning Section shall reduce

any psychiatric bed need determination s for any affected planning area by the number of beds
permitted by the provisions of G.S. 131 E 18 4 (c) contracted subsequent to the preparation of any
need determination shown in 10 NCAC 3R .3030 and prior to the beginning of the review period
for which an application i s s ubmitted.

(5) f6) Involuntarily Committed Patients. All certificate of need applications for psychiatric beds
shall indicate the proponents' willingness to be designated to serve involuntarily committed
patients.

(6) f7) Substance Abuse Programs to Treat Adolescents. Adolescents shall receive substance abuse
treatment services that are distinct from services provided to adults.

(7) f&) Determination of Intermediate Care Bed Need for Mentally Retarded/Developmentally
Disabled Persons. After applying other required criteria, when superiority among two or more
competing ICF/MR certificate of need applications is uncertain, favorable consideration shall be
given to counties that do not have ICF/MR group homes when such counties are part of a
multi-county area for which a need is shown in 10 NCAC 3R .3030.

(8) (9) Transfer of Beds from State Mental Retardation Centers. Facilities proposing to transfer
ICF/MR beds from State mental retardation centers to communities shall demonstrate that they
are committed to serving the same type of residents normally served in the State mental
retardation centers. To ensure that relocated beds will serve those persons, any certificate of
need application for beds allocated under the above policy must meet the requirements of Chapter
858 of the 1983 Session Laws. The application for transferred beds shall include a written
agreement by the applicant with the following representatives which outlines the operational
aspects of the bed transfers: Director of the Area MH/DD/SAS Program serving the county
where the program is to be located; the Director of the applicable State Mental Retardation
Center; the Chief of Developmental Disability Services in the DMH/DD/SAS; and the Secretary
of the Department of Human Resources.

Statutory Authority G.S. 1 31 E-l 76(25); 131E-177(1); 131E-183(1).

IXeason for Proposed Action: Rule necessary to

, j continue Return of Equity payments to Nursing

[Sotice is hereby given in accordance with G.S. Facilities.

150B-21.2 that the DHR/Division of Medical

Assistance intends to amend rule cited as 10 NCAC /~* , ....

Ksomment Procedures: Written comments con-
26H .0105.

cerning this amendment must be submitted by

rr, January 18, 1994, to: Division of Medical Assis-

Ihe proposed effective date of this action is tance< 7955 Umstead Drive, Raleigh, NC 27603

March 1, 1994. ATTN: Clarence Ervin, APA Coordinator. Oral

comments may be presented at the hearing. In

J\ ... , • .„ , j . , . , ~ n addition, a fiscal impact statement is available

he public hearing will be conducted at 1:30 J ;

upon written request from the same address,
p.m. on January 18, 1994 at the North Carolina

Division of Medical Assistance, 1985 Umstead CHAPTER 26 - MEDICAL ASSISTANCE

Drive, Room 132, Raleigh, NC 27603.

SUBCHAPTER 26H - REIMBURSEMENT

8:18 NORTH CAROLINA REGISTER December 15, 1993 1742

PROPOSED RULES

PLANS

SECTION .0100 - REIMBURSEMENT FOR
NURSING FACILITY SERVICES

Authority G.S. 108A-25(b); 108A-54; 108A-55; S.
L. 1985, c. 479. s. 86; 42 C.ER. 447, Subpart C.

% :jc >fi %: %

St 3K SjC

J-! ifi % J"C i<

.0105 RETURN ON EQUITY

(a) In addition to the prospective rates described
in Rule .0104. proprietary providers are eligible to
receive a return on equity capital payment each
year.

(b) The rate of return shall equal the lower of
11.875 percent or the intere s t rate for the return
on equity paid to Skilled Nursing Facilities by the
Medicare Program for the appropriate cost report
ing period. Effective October _L 1993. the rate of
return shall equal the lower of 6. 125 percent or the
published interest rate for the cost report period as
prepared by the Office of the Actuary'. Health Care
Financing Administration for Proprietary' Skilled
Nursing Facilities. This reimbursement limitation
shall become effective in accordance with the
provisions of G.S. 108A-55(c).

(c) The rate is calculated on a capital base
determine to be the total assets of the provider, its
related home office, if any. that are required to
provide nursing care less related liabilities. The
value of the fixed assets is the historical cost less
accumulated depreciation of buildings and im-
provements, all equipment, and vehicles. Leases
and direct capitalized expenditures are not to be
included in this calculation. Working capital shall
not be recognized beyond a level equal to 16.5
percent of the facility's total annual cost.

(d) Liabilities must include all liabilities related
to the assets of the facility regardless of nature or
named payor. If the state determines that the
liability has been incurred to acquire an asset
named on the balance sheet that liability shall be
counted.

(e) Providers have a positive obligation to
identify all liabilities that may bear upon reported
assets. Failure to disclose a liability later deter-
mined to be related to a reported asset shall result
in a suspension of Return on Equity payments for
the year(s) in which the failure occurred and up to
five additional years at the discretion of the state.
If the state determines that the provider's failure to
report a related liability was an unintentional
oversight, the potential five year penalty shall not
be applied.

(f) The value of assets and related capital indebt-
edness when asset ownership changes shall be
established in conformance with the provisions of
Rule .0104(c).

iSotice is hereby- given in accordance with G.S.
150B-21.2 that the Social Services Commission
intends to repeal rule cited as 10 NCAC 42 A
.0310.

1 he proposed effective date is March 1 . 1994.

1 he public hearing will be conducted at 10:00
a.m. on January 14, 1994 at the Albemarle Build-
ing, Room 844, 325 North Salisbury Street,
Raleigh, NC 27603-5905.

IXeason for Proposed Action: To eliminate a rule
governing Foster Care Services to Adults, since
rules governing Adult Placement Services will
replace Foster Care Services to Adults.

Lsomment Procedures: Comments may be pre-
sented in writing anytime before or at the public
hearing or orally at the hearing. Time limits for
oral remarks may be imposed by the Commission
Chairman. Any- person may request copies of this
rule by calling or writing to Sharnese Ransome,
Division of Social Services, 325 N. Salisbury-
Street, Raleigh, NC 27603-5905, (919) 733-3055.

CHAPTER 42 - INDIVIDUAL
AND FAMILY SUPPORT

SUBCHAPTER 42A - ADULT
PLACEMENT SERVICES

SECTION .0300 - FOSTER CARE
SERVICES FOR ADULTS

.0310 USE OF DOMICILIARY

HOMES LN OTHER COUNTIES

faj — Plac e m e nt in a lic e n se d domiciliary hom e
mad e by on e county in anoth e r county is mad e
through th e county departm e nt of s ocial se rvic es
wh e r e the home i s locat e d. — Th e plan i s work e d
e«t — b e tw e en — the — county — departm e nt — of social
se rvic es wh e r e th e hom e is locat e d and th e admin
istrator on th e basis of full social and m e dical
information. — Th e r e must b e a d e finit e agr ee m e nt
about th e plan and mutual r es ponsibilities b e tween
th e two counti e s b e for e admission is mad e .

1743

8:18

NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

{&) — Form s FL 2 or MR 2 (medical forms) and
DSS 1865 (resident regi s ter) arc sent to the home
prior to or at the time of admi ss ion and to the
county department of social service s s upervi s ing
the home.

{e) — The county of legal residence requests the
county s upervising the home to as s ume rc s pon s ibil
ity for providing placement s ervices to re s idents
being placed in the supervi s ing county, reviewing
the need for s ervices und e r Title XX of the Social
Security Act in addition to foster care services and
reporting back to the county of legal re s idence, a s
needed .

{4) — Workers may not contact homes in other
counties directly regarding admi s sion s . — After a
resident is plac e d, counties may reach an agree
ment about contacts.

fe) — Since the county of legal re s idence retains
the re s pon s ibility for providing — financial — assis
tanec, it will be respon si ble for planning for new
living arrangements for the resident, if the need
should arise, and will maintain an open income
maintenance case so long as financial assistance is
provided. — With regard to s ervic es , the ca s e will
frequently be open in more than one county at the
same time.

ff) — It must be remembered that a resident of a
group home ha s the right to accept or decline
services. — Therefore, after the initial foster care
s ervice s arc completed to the sati s faction of th e
client and his family, the ca s e might be closed for

services — m — both — countie s . The — ease — w+H — be

re opened by the appropriate county when a new
request for services is initiated. — If the request
involve s planning for new living arrangements, the
county of legal re s idence would be respon s ible.

fg-) — When county department of social services
is making plan s for a resident to go to a home in
another county, the department of s ocial serv i ces
of the county in which the home is located and th e
administrator of the home shall know in advance
the plan for tran s portation and the time of arrival.
If the placement i s arranged by relative s without
the knowledge of the county departments of social
services and later the county department i s ap
proached for financial — assistance, thi s is to be
provided by the county from which the client was
placed.

Statutory Authority G.S. 143B-153.

TITLE 13 - DEPARTMENT OF LABOR

Notice is hereby given in accordance with G.S. 150B-21.2 that the N.C. Department of Labor intends to

8:18 NORTH CAROLINA REGISTER December 15, 1993 1744

PROPOSED RULES

amend rules cited as 13 NCAC 7F .0101 and .0401.

1 he proposed effective date of this action is March 1 , 1994

1 he public hearing will be conducted at 10:00 a.m. on January 5, 1994 at the Seaboard Building,
Conference Room, 413 N. Salisbury Street, Raleigh, NC 27603.

treason for Proposed Action:

13 NCAC 7F .0101 - Update of exposure le\>els reflecting new research since 1971: proposed levels are

consistent with le\'els proposed by federal OSHA.

13 NCAC 7F .0401 - Correction to obvious typographical error.

(comment Procedures: Persons wanting to present oral testimony at the hearing should provide a written
summary of the proposed testimony to the Department within three business days prior to the hearing date.
Written conunents will be accepted until January 15, 1994. Direct all correspondence to Jill F. Cramer,
NCDOL/OSH, 413 N. Salisbury Street, Raleigh, NC 27603-5942.

CHAPTER 7 - OSHA

SUBCHAPTER 7F - STANDARDS

SECTION .0100 - GENERAL LNDUSTRY STANDARDS

.0101 GENERAL LNDUSTRY

(a) The provisions for the Occupational Safety and Health Standards for General Industry, Title 29 of the
Code of Federal Regulations Part 1910, are adopted by reference except #rat as follows:

(1) within Subpart H - Hazardous Materials, 29 CFR 1910.120, Hazardous waste operations and
emergency response, §1910. 120(q)(6) is amended by adding a new level of training:

"(vi) First responder operations plus level. First responders at operations plus level are
individuals who respond to hydrocarbon fuel tank leaks where the leaking tanks contain a
hydrocarbon fuel which is used to propel the vehicle on which the tank is located. Only those
vehicles designed for highway use or those used for industrial, agricultural or construction purposes
are covered. First responders at the operations plus level shall have received at least training equal
to first responder operations level and. in addition, shall receive training or have had sufficient
experience to objectively demonstrate competency in the following areas and the employer shall so
certif\ :

(A) Know how to select and use proper specialized personal protective equipment provided to the
first responder at operations plus level;

(B) Understand basic hazardous materials terms as they pertain to hydrocarbon fuels;

(C) Understand hazard and risk assessment techniques that pertain to gasoline, diesel fuel, propane
and other hydrocarbon fuels;

(D) Be able to perform control, containment, and/or confinement operations for gasoline, diesel
fuel, propane and other hydrocarbon fuels within the capabilities of the available resources and
personal protective equipment; and

(E) Understand and know how to implement decontamination procedures for hydrocarbon fuels."

(2) Subpart Z — Toxic and Hazardous Substances, 29 CFR 1910. 1000, Air Contaminants:
Re-adoption of revised permissible exposure limits as originally published in 54 FR (January 19,
1989) pages 2496 -2533 and pages 2668 - 2695 as follows:

1745 8:18 NORTH CAROLINA REGISTER December 15, 1993

PROPOSED RULES

RESPIRATORY EFFECTS

Chemical Name

CAS No.

Aluminum

7429-90-5

Bismuth telluride, Undoped

1304-82-1

Chlorine dioxide

10049-04-4

Chromium metal (as Cr)

7440-47-3

Coal Dust (<5% quartz) Resp. fraction

None

Coal Dust (>5% quartz)

None

Respirable quartz fraction

Ethvl acrvlate

140-88-5

Ferrovanadium dust

12604-58-9

Grain Dust (oat, wheat, barlev)

None

Graphite, natural, Resp. Dust

7782-42-5

Indium & compounds (as In)

7440-74-6

Iron oxide (dust & fume)

1309-37-1

Methylene bis

5124-30-1

(4-Cyclohexvlisocvanate)

Mica, Respirable Dust

12001-26-2

Nitrogen dioxide

10102-44-0

Oxveen difiuoride

7783-41-7

Ozone

10028-15-6

Paraquat, Respirable Dust

4685-14-7

Silica, crystalline

14464-46-1

cristobalite, Respirable Dust

Silica, crystalline quartz.

14808-60-7

Respirable Dust

Silica, crystalline

15468-32-3

tridymite, Respirable Dust

Silica, crystalline tripoli

1317-95-9

(as quartz) Respirable Dust

Silica, fused, Respirable Dust

60676-86-0

Soapstone, total dust

None

Soapstone, Respirable Dust

None

Sulfur dioxide

7446-09-5

Sulfur tetrafluoride

7783-60-0

Talc (containing no asbestos)

14807-96-6

Respirable Dust

Tin oxide (as Sn)

7440-31-5

Trimellitic anhydride

552-30-7

Wood dust, hard

None

Wood dust, soft

None

Wood dust, allergenic

None

(Western Red Cedar)

PEL

15 mg/m 3 TWA Total Dust
5 mg/m'TWA Resp. fraction
15 mg/m' TWA Total Dust
5 mg/m 3 TWA Resp. fraction
0.1 ppm TWA
0.3 ppm STEL

1 mg/m 3 TWA

2 mg/m 3 TWA
0.1 mg/m 3 TWA

5ppm TWA

25 ppm STEL, Skin

1 mg/m 3 TWA

3 mg/m 3 STEL
10 mg/m' TWA
2.5 mg/m 3 TWA
0. 1 mg/m 3 TWA
10 mg/m' TWA
0.01 ppm Ceiling

Skin

3 mg/m' TWA

1 ppm STEL
0.05 ppm Ceiling
0.1 ppm TWA
0.3 ppm STEL

0.1 mg/m' TWA, Skin
0.05 mg/m' TWA

0.1 mg/m 3 TWA

0.05mg/m' TWA

0.1 mg/m' TWA

0. 1 mg/m 3 TWA
6 mg/m 3 TWA
3 mg/m 3 TWA

2 ppm TWA
5 ppm STEL

0. 1 ppm Ceiling
2 mg/m' TWA

2 mg/m 3 TWA
0.005 ppm TWA
5 mg/m 3 TWA
10 mg/m' STEL
5 mg/m' TWA
10 mg/m 3 STEL
2.5 mg/m 3 TWA

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December 15, 1993

1746

PROPOSED RULES

Chemical Name

Aerylamide

Amitrole

Carbon tetrachloride

Chloroform

Chromic acid

Dimethyl sulfate

2-Nitropropane

Perchloroethylene

o-Toluidine

p-Toluidine

Vinyl bromide

Vinyl cyclohexene dioxide

AVOIDANCE OF CANCER

CAS No.

79-06-1

61-82-5

56-23-5

67-66-3

1333-82-0

77-78-1

79-46-9

127-18-4

95-53-4

106-49-0

593-60-2

106-87-6

PEL

0.03mg/m 3 TWA, Skin

0.2 mg/m 3 TWA

2 ppm TWA

0. 1 mg/m' Ceiling

0.1 ppm TWA. Skin

10 ppm TWA

25 rjjjm TWA

5 ppm TWA. Skin

2 ppm TWA. Skin

5 ppm TWA

10 ppm TWA. Skin. "

(b) The parts of the Code of Federal Regulations incorporated by reference in this Subchapter shall not
automatically include any subsequent amendments thereto, except as follows:

(1) Subpart J — General Environmental Controls — typographical and clarifying corrections at
1910. 146. Permit- Required Confined Spaces, published in 58 FR (June 29. 1993) pages 34844 -

34851 and adopted by the North Carolina Department of Labor on September 24, 1993;
corrections are to final rule for Permit-Required Confined Spaces as originally published in 58
FR 4462 (January 14. 1993).

(2) Subpart Z — Toxic and Hazardous Substances:

(A) evocation of exposure limits in "Final rule limits" columns of Table Z-l-A at 1910.1000, Air
Contaminants, published in 58 FR (June 30, 1993) pages 35338 - 35351 and adopted by the
North Carolina Department of Labor on September 24, 1993.

(B) Typographical and technical corrections at 1910.1027, Cadmium, published in 58 FR (April
23. 1993) pages 21778 - 21787 and adopted by the North Carolina Department of Labor on
September 24. 1993; corrections are to final rule for Occupational Exposure to Cadmium as
originally published in 57 FR 42101 (September 14, 1992).

(c) Copies of the applicable Code of Federal Regulations sections referred to in this Subchapter are
available to the public. Please refer to 13 NCAC 7A.0302 for the costs involved and from whom copies may
be obtained.

Statutory- Authority G.S. 95-131; 95-133; 150B-21.6.

SECTION .0400 - SHOPS FABRICATING
STRUCTURAL STEEL AND STEEL PLATE

.0401 GENERAL REQUIREMENTS

(a) Application. This standard establishes safety requirements for handling, storing, preparing, fitting,
fastening, and shipping structural and plate steel at fabricated structural steel fabricating shops of firms
primarily engaged in fabricating structural steel and steel plate. This standard does not apply to businesses
where fabrication of structural steel and steel plate is incidental to the principal business, or to the final
in-place field erection site.

(b) Incorporated Standards. Standards concerning issues of occupational safety and health which are of
general application without regard to this or any specific industry are incorporated herein as set forth in Part
1910 - Occupational Safety and Health Standards, Code of Federal Regulations Title 29, Chapter XVII,
June 27, 297 4 1974 , and its amendments.

Statutory' Authority G.S. 95-131.

1747

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December 15, 1993

PROPOSED RULES

TITLE 15A - DEPARTMENT OF

ENVIRONMENT, HEALTH, AND

NATURAL RESOURCES

Notice is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Environmental Man-
agement Commission intends to amend rule cited
as 15A NCAC 2B .0211; repeal rules cited as 15 A
NCAC2H .0301 - .0306.

1 he proposed effective date of this action is
March 1. 1994.

Instructions on How to Demand a Public Hearing
(must be requested in writing within 15 days of
notice): Any person requesting that the Environ-
mental Management Commission conduct a public
hearing on these proposed rules must submit a
written request to Suzanne Keen, Division of
Environmental Management, Vbter Quality, P.O.
Box 29535, Raleigh, NC 27626-0535 by January
1 , 1994. Mailed written requests must be post-
marked no later than January 1 , 1994.

Reason for Proposed Action:
15 A NCAC 2B .0211 - The purpose of this amend-
ment is to correct a clerical error make in a
previous filing.

15A NCAC 2H .0301 - .0306 - On July 14, 1992
the North Carolina General Statutes were modified
to transfer the authority for most subsurface
systems previously permitted by the Division of
Environmental Management (DEM) to local health
departments. This repeal removes rules that have
been made obsolete by other legislative and rule
changes.

Ksomment Procedures: All persons interested in
this proposed amendment is encouraged to submit
written comments. Comments must be postmarked
by January 15, 1994 and submitted to Suzanne
Keen, Division of Environmental Management,
Water Quality, P.O. Box 29535, Raleigh, NC
27626-0535.

CHAPTER 2 - ENVIRONMENTAL
MANAGEMENT

SUBCHAPTER 2B - SURFACE

WATER STANDARDS:

MONITORING

SECTION .0200 - CLASSIFICATIONS

AND WATER QUALITY STANDARDS

APPLICABLE TO SURFACE WATERS

OF NORTH CAROLINA

.0211 FRESH SURFACE WATER
CLASSIFICATIONS AND
STANDARDS

(a) General. The water quality standards for all
fresh surface waters are the basic standards appli-
cable to Class C waters. Additional and more
stringent standards applicable to other specific
freshwater classifications are specified in Para-
graphs (c) through (f) of this Rule.

(b) All fresh surface waters (Class C).

(1) Best Usage of Waters. Aquatic life
propagation and maintenance of biologi-
cal integrity (including fishing, and
fish), wildlife, secondary recreation,
agriculture and any other usage except
for primary recreation or as a source of
water supply for drinking, culinary or
food processing purposes;

(2) Conditions Related to Best Usage. The
waters will be suitable for aquatic life
propagation and maintenance of biologi-
cal integrity, wildlife, secondary recre-
ation, and agriculture; sources of water
pollution which preclude any of these
uses on either a short-term or long-term
basis will be considered to be violating
a water quality standard;

(3) Quality standards applicable to all fresh
surface waters:

(A) Chlorophyll a (corrected): not greater
than 40 ug/1 for lakes, reservoirs, and
other slow-moving waters not desig-
nated as trout waters, and not greater
than 15 ug/1 for lakes, reservoirs, and
other slow-moving waters designated
as trout waters (not applicable to lakes
and reservoirs less than ten acres in
surface area); the Commission or its
designee may prohibit or limit any
discharge of waste into surface waters
if, in the opinion of the Director, the
surface waters experience or the
discharge would result in growths of
microscopic or macroscopic vegeta-
tion such that the standards estab-
lished pursuant to this Rule would be
violated or the intended best usage of
the waters would be impaired;

(B) Dissolved oxygen: not less than 6.0
mg/1 for trout waters; for non-trout

8:18

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December 15, 1993

1748

PROPOSED RULES

waters, not less than a daily average
of 5.0 mg/1 with a minimum instanta-
neous value of not less than 4.0 mg/1;
swamp waters, lake coves or backwat-
ers, and lake bottom waters may have
lower values if caused by natural
conditions;

(C) Floating solids; settleable solids;
sludge deposits: only such amounts
attributable to sewage, industrial
wastes or other wastes as will not
make the water unsafe or unsuitable
for aquatic life and wildlife or impair
the waters for any designated uses;

(D) Gases, total dissolved: not greater
than 1 10 percent of saturation;

(E) Organisms of the coliform group:
fecal coliforms not to exceed a geo-
metric mean of 200/ 100ml (MF
count) based upon at least five con-
secutive samples examined during any
30 day period; nor exceed 400/ 100ml
in more than 20 percent of the sam-
ples examined during such period;
violations of the fecal coliform stan-
dard are expected during rainfall
events and, in some cases, this viola-
tion is expected to be caused by un-
controllable nonpoint source pollu-
tion; all coliform concentrations are to
be analyzed using the membrane filter
technique unless high turbidity or
other adverse conditions necessitate
the tube dilution method; in case of
controversy over results, the MPN
5-tube dilution technique will be used
as the reference method;

(F) Oils; deleterious substances; colored
or other wastes: only such amounts as
will not render the waters injurious to
public health, secondary recreation or
to aquatic life and wildlife or adverse-
ly affect the palatability of fish, aes-
thetic quality or impair the waters for
any designated uses; for the purpose
of implementing this Rule, oils, dele-
terious substances, colored or other
wastes will include but not be limited
to substances that cause a film or
sheen upon or discoloration of the
surface of the water or adjoining
shorelines pursuant to 40 CFR
1 10.4(a)-(b) which are hereby
incorporated by reference including
any subsequent amendments and

additions. This material is available
for inspection at the Department of
Environment, Health, and Natural
Resources, Division of Environmental
Management, 512 North Salisbury
Street, Raleigh, North Carolina.
Copies may be obtained from the
Superintendent of Documents, U.S.
Government Printing Office,
Washington, DC. 20402-9325 at a
cost of thirteen dollars ($13.00).
(G) pH: shall be normal for the waters in
the area, which generally shall range
between 6.0 and 9.0 except that
swamp waters may have a pH as low
as 4.3 if it is the result of natural
conditions;
(H) Phenolic compounds: only such levels
as will not result in fish-flesh tainting
or impairment of other best usage;
(I) Radioactive substances:

(i) Combined radium-226 and

radium-228: the maximum

average annual activity level

(based on at least four samples

collected quarterly) for combined

radium-226 and radium-228 shall

not exceed five picoCuries per

liter;

(ii) Alpha Emitters: the average

annual gross alpha particle

activity (including radium-226,

but excluding radon and uranium)

shall not exceed 15 picoCuries per

liter;

(iii) Beta Emitters: the maximum

average annual activity level

(based on at least four samples,

collected quarterly) for

strontium-90 shall not exceed

eight picoCuries per liter; nor

shall the average annual gross

beta particle activity (excluding

potassium-40 and other naturally

occurring radio-nuclides) exceed

50 picoCuries per liter; nor shall

the maximum average annual

activity level for tritium exceed

20,000 picoCuries per liter;

(J) Temperature: not to exceed 2.8

degrees C (5.04 degrees F) above the

natural water temperature, and in no

case to exceed 29 degrees C (84.2

degrees F) for mountain and upper

piedmont waters and 32 degrees C

1749

8:18

NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

)

(89.6 degrees F) for lower piedmont

and coastal plain waters. The

temperature for trout waters shall not

be increased by more than 0.5

degrees C (0.9 degrees F) due to the

discharge of heated liquids, but in no

case to exceed 20 degrees C (68

degrees F);

(K) Turbidity: the turbidity in the

receiving water will not exceed 50

Nephelometric Turbidity Units (NTU)

in streams not designated as trout

waters and 10 NTU in streams, lakes

or reservoirs designated as trout

waters; for lakes and reservoirs not

designated as trout waters, the

turbidity will not exceed 25 NTU; if

turbidity exceeds these levels due to

natural background conditions, the

existing turbidity level cannot be

increased. Compliance with this

turbidity standard can be met when

land management activities employ

Best Management Practices (BMPs)

[as defined by Rule .0202(6) of this

Section] recommended by the

Designated Nonpoint Source Agency

[as defined by Rule .0202 of this

Section]. BMPs must be in full

compliance with all specifications

governing the proper design,

installation, operation and

maintenance of such BMPs;

(L) Toxic substances: numerical water

quality standards (maximum

permissible levels) to protect aquatic

life applicable to all fresh surface

waters:

(i) Arsenic: 50 ug/1;

(ii) Beryllium: 6.5 ug/1;

(iii) Cadmium: 0.4 ug/1 for trout

waters and 2.0 ug/1 for non-trout

waters;

(iv) Chlorine, total residual: 17 ug/1

for trout waters (Tr); (Action

Level of 17 ug/1 for all waters not

classified as trout waters (Tr); see

Paragraph (b)(4) of this Rule);

(v) Chromium, total recoverable: 50

ug/1;
(vi) Cyanide: 5.0 ug/1;
(vii) Fluorides: 1.8 mg/l;
(viii) Lead, total recoverable: 25 ug/1;
collection of data on sources,
transport and fate of lead will be

required as part of the toxicity
reduction evaluation for
dischargers that are out of
compliance with whole effluent
toxicity testing requirements and
the concentration of lead in the
effluent is concomitantly
determined to exceed an instream
level of 3.1 ug/1 from the
discharge;

(ix) MBAS (Methylene-Blue Active
Substances): 0.5 mg/l;

(x) Mercury: 0.012 ug/1;

(xi) Nickel: 88 ug/1;
(xii) Pesticides:

(I) Aldrin: 0.002 ug/1;
(II) Chlordane: 0.004 ug/1;

(III) DDT: 0.001 ug/1;

(IV) Demeton: 0.1 ug/1;
(V) Dieldrin: 0.002 ug/1;

(VI) Endosulfen: 0.05 ug/1;
(VII) Endrin: 0.002 ug/1;
(VIII) Guthion: 0.01 ug/1;
(IX) Heptachlor: 0.004 ug/1;
(X) Lindane: 0.01 ug/1;
(XI) Methoxychlor: 0.03 ug/1;
(XII) Mirex: 0.001 ug/1;

(XIII) Parathion: 0.013 ug/1;

(XIV) Toxaphene: 0.0002 ug/1;
(xiii) Polychlorinated biphenyls: 0.001

ug/1;
(xiv) Selenium: 5 ug/1;
(xv) Toluene: 11 ug/1 or 0.36 ug/1 in

trout waters;
(xvi) Trialkyltin compounds: 0.008

ug/1 expressed as tributyltin.
(4) Action Levels for Toxic Substances: if
the Action Levels for any of the
substances listed in this Subparagraph
(which are generally not
bioaccumulative and have variable
toxicity to aquatic life because of
chemical form, solubility, stream
characteristics or associated waste
characteristics) are determined by the
waste load allocation to be exceeded in
a receiving water by a discharge under
the specified low flow criterion for
toxic substances (Rule .0206 in this
Section), the discharger will be required
to monitor the chemical or biological
effects of the discharge; efforts shall be
made by all dischargers to reduce or
eliminate these substances from their
effluents. Those substances for which

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1750

PROPOSED RULES

Action Levels are listed in this
Subparagraph will be limited as
appropriate in the NPDES permit based
on the Action Levels listed in this
Subparagraph if sufficient information
(to be determined for metals by
measurements of that portion of the
dissolved instream concentration of the
Action Level parameter attributable to
a specific NPDES permitted discharge)
exists to indicate that any of those
substances may be a significant
causative factor resulting in toxicity of
the effluent;

(A) Copper: 7 ug/1;

(B) Iron: 1.0mg/l;

(D) Zinc: 50 ug/1;

(E) Chloride: 230 mg/1;

(F) Chlorine, total residual: 17 ug/1 in all
waters except trout waters (Tr); [a
standard of 17 ug/1 exists for waters
classified as trout waters and is
applicable as such to all dischargers to
trout waters; see Subparagraph
(b)(3)(L)(iv) of this Rule];

For purposes other than consideration of NPDES
permitting of point source discharges as described
in this Subparagraph, the Action Levels in this
Rule, as measured by an appropriate analytical
technique, will be considered as numerical ambient
water quality standards,
(c) Class WS-I Waters.

(1) Best Usage of Waters. Source of water
supply for drinking, culinary, or
food-processing purposes for those
users desiring maximum protection of
their water supplies, and any best usage
specified for Class C waters;

(2) Conditions Related to the Best Usage.
Waters of this class are protected water
supplies within essentially natural and
undeveloped watersheds with no
permitted point source dischargers
except those specified in Rule .0104 of
this Subchapter; waters within this class
must be relatively unimpacted by
nonpoint sources of pollution; land use
management programs are required to
protect waters from nonpoint source
pollution; the waters, following
treatment required by the Division of
Environmental Health, will meet the
Maximum Contaminant Level
concentrations considered safe for

drinking, culinary, and food-processing
purposes which are specified in the
national drinking water regulations and
in the North Carolina Rules Governing
Public Water Supplies, 15A NCAC
18C .1500; sources of water pollution
which preclude any of these uses on
either a short-term or long-term basis
will be considered to be violating a
water quality standard. The Class WS-I
classification may be used to protect
portions of Class WS-II, WS-III and
WS-IV water supplies. For

reclassifications occurring after the July
1, 1992 statewide reclassification, the
more protective classification requested
by local governments will be considered
by the Commission when all local
governments having jurisdiction in the
affected area(s) have adopted a
resolution and effective appropriate
ordinances to protect the watershed or
the Commission acts to protect a
watershed when one or more local
governments has failed to adopt
necessary protection measures.
(3) Quality Standards Applicable to Class
WS-I Waters:

(A) Nonpoint Source Pollution: none that
would adversely impact the waters for
use as a water supply or any other
designated use;

(B) Organisms of coliform group: total
coliforms not to exceed 50/100 ml
(MF count) as a monthly geometric
mean value in watersheds serving as
unfiltered water supplies;

(C) Phenolic compounds: not greater than
1.0 ug/1 (phenols) to protect water
supplies from taste and odor problems
from chlorinated phenols;

(D) Sewage, industrial wastes: none
except those specified in
Subparagraph (2) of this Paragraph;
or Rule .0104 of this Subchapter;

(E) Solids, total dissolved: not greater
than 500 mg/1;

(F) Total hardness: not greater than 100
mg/1 as calcium carbonate;

(G) Toxic and other deleterious
substances:

(i) Water quality standards
(maximum permissible
concentrations) to protect human
health through water consumption

1751

8:18

NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

and fish tissue consumption for
non-carcinogens in Class WS-I
waters :
(I) Barium: 1.0mg/l;
(II) Chloride: 250 mg/1;
(HI) Manganese: 200 ug/1;
(IV) Nickel: 25 ug/1;
(V) Nitrate nitrogen: 10.0 mg/1;
(VI) 2,4-D: 100 ug/1;
(VII) 2,4,5-TP (Silvex): 10 ug/1;
(VIII) Sulfates: 250 mg/1;
(ii) Water quality standards
(maximum permissible
concentrations) to protect human
health through water consumption
and fish tissue consumption for
carcinogens in Class WS-I waters:
(I) Beryllium: 6.8 ng/1;
(II) Benzene: 1.19 ug/1;

(III) Carbon tetrachloride: 0.254
ug/1;

(IV) Chlorinated benzenes: 488
ug/1;

(V) Dioxin: 0.000013 ng/1;
(VI) Hexachlorobutadiene: 0.445

ug/1;
(VII) Polynuclear aromatic

hydrocarbons: 2.8 ng/1;
(VIII) Tetrachloroethane (1,1,2,2):
0.172 ug/1;
(IX) Tetrachloroethylene: 0.8 ug/1;
(X) Trichloroethylene: 3.08 ug/1;
(XI) Vinyl Chloride: 2 ug/1;
(XII) Aldrin: 0.127 ng/1;

(XIII) Chlordane: 0.575 ng/1;

(XIV) DDT: 0.588 ng/1;
(XV) Dieldrin: 0.135 ng/1;

(XVI) Heptachlor: 0.208 ng/1.
(d) Class WS-II Waters.

(1) Best Usage of Waters. Source of water
supply for drinking, culinary, or
food-processing purposes for those
users desiring maximum protection for
their water supplies where a WS-I
classification is not feasible and any
best usage specified for Class C waters.

(2) Conditions Related to Best Usage.
Waters of this class are protected as
water supplies which are generally in
predominantly undeveloped watersheds;
discharges which qualify for a General
Permit pursuant to 15A NCAC 2H
.0127, trout farm discharges, recycle
(closed loop) systems that only
discharge in response to 10-year storm

events and other stormwater discharges

are allowed in the entire watershed;

new domestic and industrial discharges

of treated wastewater are not allowed in

the entire watershed; the waters,

following treatment required by the

Division of Environmental Health, will

meet the Maximum Contaminant Level

concentrations considered safe for

drinking, culinary, and food-processing

purposes which are specified in the

national drinking water regulations and

in the North Carolina Rules Governing

Public Water Supplies, 15A NCAC

18C .1500; sources of water pollution

which preclude any of these uses on

either a short-term or long-term basis

will be considered to be violating a

water quality standard. The Class

WS-II classification may be used to

protect portions of Class WS-III and

WS-IV water supplies. For

reclassifications occurring after the July

1, 1992 statewide reclassification, the

more protective classification requested

by local governments will be considered

by the Commission when all local

governments having jurisdiction in the

affected area(s) have adopted a

resolution and effective appropriate

ordinances to protect the watershed or

the Commission acts to protect a

watershed when one or more local

governments has failed to adopt

necessary protection measures.

(3) Quality Standards Applicable to Class

WS-II Waters:

(A) Sewage, industrial wastes,

non-process industrial wastes, or other

wastes: none except for those

specified in either Subparagraph (2) of

this Paragraph and Rule .0104 of this

Subchapter; and none which will have

an adverse effect on human health or

which are not effectively treated to

the satisfaction of the Commission

and in accordance with the

requirements of the Division of

Environmental Health, North Carolina

Department of Environment, Health,

and Natural Resources; any

discharger may be required upon

request by the Commission to disclose

all chemical constituents present or

potentially present in their wastes and

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December 15, 1993

1752

PROPOSED RULES

chemicals which could be spilled or

be present in runoff from their facility

which may have an adverse impact on

downstream water quality; these

facilities may be required to have spill

and treatment failure control plans as

well as perform special monitoring for

toxic substances;

(B) Nonpoint Source and Stormwater

Pollution: none that would adversely

impact the waters for use as a water

supply or any other designated use;

(i) Nonpoint Source and Stormwater

Pollution Control Criteria For

Entire Watershed:

(I) Low Density Option:

Development density must be

limited to either no more than

one dwelling unit per acre or

12 percent built-upon area in

the watershed outside of the

critical area;

(II) High Density Option: If new

development exceeds either

one dwelling unit per acre or

12 percent built-upon area,

then engineered stormwater

controls must be used to

control runoff from the first

inch of rainfall; new

development not to exceed 30

percent built-upon area;

(III) Land within the watershed will
be deemed compliant with the
density requirements if the
following two conditions are
met: The density of all
existing development at the
time of reclassification meets
the density requirement when
densities are averaged
throughout the entire
watershed area at the time of
classification; All new
development meets this density
requirement on a
project-by-project basis;

minimize stormwater runoff
impact to the receiving waters
and minimize concentrated
stormwater flow; Remainder of
tract to remain in vegetated or
natural state;
(V) A maximum of five percent of
each jurisdiction's portion of
the watershed outside of the
critical area as delineated on
July 1, 1993 may be developed
with new non-residential
development projects of up to
70 percent built-upon surface
area in addition to the new
non-residential development
approved in compliance with
the appropriate requirements of
Subparagraphs (d)(3)(B)(i)(I)
or (d)(3)(B)(i)(II) of this
Paragraph. The Commission
may allow 70 percent
built-upon area on greater than
five percent but not to exceed
10 percent of each
jurisdiction's portion of the
designated watershed outside
of the critical area for new
non-residential development.
Each project must to the
maximum extent practicable
minimize built-upon surface
area, direct stormwater runoff
away from surface waters and
incorporate best management
practices to minimize water
quality impacts; if the local
government opts for high
density development then
appropriate engineered
stormwater controls (wet
detention basins) must be
employed for the new
non-residential development
which exceeds the low density
requirements;
(VI) If local governments choose
the high density development
option which requires
stormwater controls, then they
will assume ultimate
responsibility for operation and
maintenance of the required
controls as outlined in Rule
.0104(f) of this Subchapter;

1753

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December 15, 1993

PROPOSED RULES

(VII) Minimum 100 foot vegetative
buffer is required for all new
development activities that
exceed the low density option
requirements as specified in
Subparagraphs (d)(3)(B)(i)(I)
or (d)(3)(B)(ii)(II) of this
Paragraph; otherwise a
minimum 30 foot vegetative
buffer for development
activities is required along all
perennial waters indicated on
the most recent versions of
U.S.G.S. 1:24,000 (7.5
minute) scale topographic
maps or as determined by local
government studies; nothing in
this Section shall stand as a
bar to desirable artificial
streambank or shoreline
stabilization;
(VIII) No new development is
allowed in the buffer; water
dependent structures, and
public projects such as road
crossings and grecnways may
be allowed where no
practicable alternative exists;
these activities shall minimize
built-upon surface area, direct
runoff away from the surface
waters and maximize the
utilization of BMPs;
(IX) Maintain inventory of all
hazardous materials used and
stored in the watershed;
spill/failure containment plan
and appropriate safeguards
against contamination are
required; waste minimization
and appropriate recycling of
materials is encouraged;
(X) No new discharging landfills
are allowed;
(ii) Critical Area Nonpoint Source

and Stormwater Pollution Control

Criteria:
(I) New industrial development is
required to incorporate
adequately designed,
constructed and maintained
spill containment structures if
hazardous materials [as defined
by 15A NCAC 2B .0202] are
either used, stored or

manufactured on the premises;
(II) Low Density Option: New
development is limited to
either no more than one
dwelling unit per two acres or
six percent built-upon area;

(III) High Density Option: If new
development density exceeds
either one dwelling unit per
two acres or six percent
built-upon area, then
engineered stormwater controls
must be used to control runoff
from the first inch of rainfall;
development density not to
exceed 24 percent built-upon
area;

(IV) No new permitted sites for
land application of
sludge/residuals or petroleum
contaminated soils are allowed;

(V) No new landfills are allowed;

(C) Odor producing substances contained
in sewage or other wastes: only such
amounts, whether alone or in
combination with other substances or
wastes, as will not cause: taste and
odor difficulties in water supplies
which cannot be corrected by
treatment, impair the palatability of
fish, or have a deleterious effect upon
any best usage established for waters
of this class;

(D) Phenolic compounds: not greater than
1 .0 ug/1 (phenols) to protect water
supplies from taste and odor problems
from chlorinated phenols;

(E) Total hardness: not greater than 100
mg/1 as calcium carbonate;

(F) Total dissolved solids: not greater
than 500 mg/1;

(G) Toxic and other deleterious
substances:

(i) Water quality standards
(maximum permissible
concentrations) to protect human
health through water consumption
and fish tissue consumption for
non-carcinogens in Class WS-II
waters:
(I) Barium: 1.0 mg/1;
(II) Chloride: 250 mg/1;

(III) Manganese: 200 ug/1;

(IV) Nickel: 25 ug/1;

(V) Nitrate nitrogen: 10 mg/1;

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PROPOSED RULES

(VI) 2,4-D: 100 ug/1;
(VII) 2,4.5-TP: 10 ug/1;
(VIII) Sulfates: 250 mg/1;
(ii) Water quality standards
(maximum permissible
concentrations) to protect human
health through water consumption
and fish tissue consumption for
carcinogens in Class WS-II
waters :
(I) Beryllium: 6.8 ng/I;
(II) Benzene: 1.19 ug/1;

(III) Carbon tetrachloride: 0.254
ug/1;

(IV) Chlorinated benzenes: 488
ug/1;

(V) Dioxin: 0.000013 ug/1;
(VI) Hexachlorobutadiene: 0.445

ug/1;
(VII) Polynuclear aromatic

hydrocarbons: 2.8 ng/1;
(VIII) Tetrachloroethane (1,1,2,2):
0.172 ug/1:
(IX) Tetrachloroethylene: 0.8 ug/1;
(X) Trichloroethylene: 3.08 ug/1;
(XI) Vinyl Chloride: 2 ug/1;
(XII) Aldrin: 0.127 ng/1;

(XIII) Chlordane: 0.575 ng/1;

(XIV) DDT: 0.588 ng/1;
(XV) Dieldrin: 0.135 ng/1;

(XVI) Heptachlor: 0.208 ng/1;
(e) Class WS-III Waters.

(1) Best Usage of Waters. Source of water
supply for drinking, culinary, or
food-processing purposes for those
users where a more protective WS-I or
WS-II classification is not feasible and
any other best usage specified for Class
C waters:

(2) Conditions Related to Best Usage.
Waters of this class are protected as
water supplies which are generally in
low to moderately developed
watersheds; discharges that qualify for
a General Permit pursuant to 15A
NCAC 2H .0127, trout farm
discharges, recycle (closed loop)
systems that only discharge in response
to 10-year storm events, and other
stormwater discharges are allowed in
the entire watershed; treated domestic
wastewater discharges are allowed in
the entire watershed but no new
domestic wastewater discharges are
allowed in the critical area; no new

industrial wastewater discharges except

non-process industrial discharges are

allowed in the entire watershed; the

waters, following treatment required by

the Division of Environmental Health.

will meet the Maximum Contaminant

Level concentrations considered safe for

drinking, culinary, or food-processing

purposes which are specified in the

national drinking water regulations and

in the North Carolina Rules Governing

Public Water Supplies, 15A NCAC

18C .1500; sources of water pollution

which preclude any of these uses on

either a short-term or long-term basis

will be considered to be violating a

water quality standard; the Class WS-III

classification may be used to protect

portions of Class WS-IV water

supplies. For reclassifications

occurring after the July 1, 1992

statewide reclassification, the more

protective classification requested by

local governments will be considered by

the Commission when all local

governments having jurisdiction in the

affected area(s) have adopted a

resolution and effective appropriate

ordinances to protect the watershed or

the Commission acts to protect a

watershed when one or more local

governments has failed to adopt

necessary protection measures.

(3) Quality Standards Applicable to Class

WS-III Waters:

(A) Sewage, industrial wastes.

non-process industrial wastes, or other

wastes: none except for those

specified in Subparagraph (2) of this

Paragraph and Rule .0104 of this

Subchapter; and none which will have

an adverse effect on human health or

which are not effectively treated to

the satisfaction of the Commission

and in accordance with the

requirements of the Division of

Environmental Health, North Carolina

Department of Environment, Health,

and Natural Resources; any

discharger may be required by the

Commission to disclose all chemical

constituents present or potentially

present in their wastes and chemicals

which could be spilled or be present

in runoff from their facility which

1755

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PROPOSED RULES

may have an adverse impact on

downstream water quality; these

facilities may be required to have spill

and treatment failure control plans as

well as perform special monitoring for

toxic substances;

(B) Nonpoint Source and Stormwater

Pollution: none that would adversely

impact the waters for use as water

supply or any other designated use;

(i) Nonpoint Source and Stormwater

Pollution Control Criteria For

Entire Watershed:

(I) Low Density Option:

Development density must be

limited to either no more than

two dwelling units per acre or

24 percent built-upon on area

in watershed outside of the

critical area;

(II) High Density Option: If new

development density exceeds

two dwelling units per acre or

24 percent built-upon area then

development must control

runoff from the first inch of

rainfall; new development not

to exceed 50 percent

built-upon area;

(III) Land within the watershed will
be deemed compliant with the
density requirements if the
following two conditions are
met: The density of all
existing development at the
time of reclassification meets
the density requirement when
densities are averaged
throughout the entire
watershed area; All new
development meets these
density requirements on a
project-by-project basis;

(IV) Clustering of development is
allowed on a project-by-project
basis as follows: Overall
density of the project meets
associated density or
stormwater control
requirements; Built-upon areas
are designed and sited to
minimize stormwater runoff
impact to the receiving waters
and minimizes concentrated
stormwater flow; Remainder of

tract to remain in vegetated or
natural state;
(V) A maximum of five percent of
each jurisdiction's portion of
the watershed outside of the
critical area as delineated on
July 1, 1993 may be developed
with new non-residential
development projects of up to
70 percent built-upon surface
area in addition to the new
non-residential development
approved in compliance with
the appropriate requirements of
Subparagraphs (e)(3)(B)(i)(I)
or (e)(3)(B)(i)(II) of this
Paragraph. The Commission
may allow 70 percent
built-upon area on greater than
five percent but not to exceed
10 percent of each
jurisdiction's portion of the
designated watershed outside
of the critical area for new
non-residential development.
Each project must to the
maximum extent practicable
minimize built-upon surface
area, direct stormwater runoff
away from surface waters, and
incorporate best management
practices to minimize water
quality impacts; if the local
government opts for high
density development then
appropriate engineered
stormwater controls (wet
detention basins) must be
employed for the new
non-residential development
which exceeds the low density
requirements;

(VI) If local governments choose
the high density development
option which requires
engineered stormwater
controls, then they will assume
ultimate responsibility for
operation and maintenance of
the required controls as
outlined in Rule .0104(f) of
this Subchapter;

(VII) Minimum 100 foot vegetative
buffer is required for all new
development activities that

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1756

PROPOSED RULES

exceed the low density
requirements as specified in
Subparagraphs (e)(3) (B)(i) (I)
or (e)(3)(B)(ii)(II) of this
Paragraph, otherwise a
minimum 30 foot vegetative
buffer for development is
required along all perennial
waters indicated on the most
recent versions of U.S.G.S.
1:24,000 (7.5 minute) scale
topographic maps or as
determined by local
government studies; nothing in
this Section shall stand as a
bar to desirable artificial
streambank or shoreline
stabilization;
(VIII) No new development is
allowed in the buffer; water
dependent structures, and
public projects such as road
crossings and greenways may
be allowed where no
practicable alternative exists;
these activities shall minimize
built-upon surface area, divert
runoff away from surface
waters and maximize the
utilization of BMPs;
(IX) Maintain inventory of all
hazardous materials used and
stored in the watershed;
spill/failure containment plan
and appropriate safeguards
against contamination are
required; waste minimization
and appropriate recycling of
materials is encouraged;
(X) No new discharging landfills
are allowed;
(ii) Critical Area Nonpoint Source

and Stormwater Pollution Control

Criteria:
(I) New industrial development is
required to incorporate
adequately designed,
constructed and maintained
spill containment structures if
hazardous materials are either
used, stored or manufactured
on the premises;
(II) Low Density Option: New
development limited to one
dwelling unit per acre or 12

percent built-upon area;

(III) High Density Option: If new

development exceeds either
one dwelling unit per acre or
12 percent built-upon area then
engineered stormwater controls
must be used to control runoff
from the first inch of rainfall;
development not to exceed 30
percent built-upon area;

(IV) No new permitted sites for
land application of
sludge/residuals or petroleum
contaminated soils are allowed;

(V) No new landfills are allowed;

(C) Odor producing substances contained
in sewage, industrial wastes, or other
wastes: only such amounts, whether
alone or in combination with other
substances or wastes, as will not
cause taste and odor difficulties in
water supplies which cannot be
corrected by treatment, impair the
palatability of fish, or have a
deleterious effect upon any best usage
established for waters of this class;

(D) Phenolic compounds: not greater than
1.0 ug/1 (phenols) to protect water
supplies from taste and odor problems
from chlorinated phenols;

(E) Total hardness: not greater than 100
mg/1 as calcium carbonate;

(F) Total dissolved solids: not greater
than 500 mg/1;

(G) Toxic and other deleterious
substances:

(i) Water quality standards
(maximum permissible
concentrations) to protect human
health through water consumption
and fish tissue consumption for
non-carcinogens in Class WS-III
waters :
(I) Barium: 1.0 mg/1;
(II) Chloride: 250 mg/1;

(III) Manganese: 200 ug/1;

(IV) Nickel: 25 ug/1;

(V) Nitrate nitrogen: 10 mg/1;
(VI) 2,4-D: 100 ug/1;
(VII) 2,4,5-TP (Silvex): 10 ug/1;
(VIII) Sulfates: 250 mg/1;
(ii) Water quality standards
(maximum permissible
concentrations) to protect human
health through water consumption

1757

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PROPOSED RULES

)

and fish tissue consumption for
carcinogens in Class WS-III
waters:
(I) Beryllium: 6.8 ng/1;
(II) Benzene: 1.19 ug/1;

(III) Carbon tetrachloride: 0.254
ug/1;

(IV) Chlorinated benzenes: 488
ug/1;

(V) Dioxin: 0.000013 ng/1;
(VI) Hexachlorobutadiene: 0.445

ug/1;
(VII) Polynuclear aromatic

hydrocarbons: 2.8 ng/1;
(VIII) Tetrachloroethane (1,1,2,2):
0.172 ug/1;
(IX) Tetrachloroethylene: 0.8 ug/1;
(X) Trichloroethylene: 3.08 ug/1;
(XI) Vinyl Chloride: 2 ug/1;
(XII) Aldrin: 0.127 ng/1;

(XIII) Chlordane: 0.575 ng/1;

(XIV) DDT: 0.588 ng/1;
(XV) Dieldrin: 0.135 ng/1;

(XVI) Heptachlor: 0.208 ng/1;
(f) Class WS-IV Waters.

(1) Best Usage of Waters. Source of water
supply for drinking, culinary, or
food-processing purposes for those
users where a more protective WS-I,
WS-II or WS-III classification is not
feasible and any other best usage
specified for Class C waters;

(2) Conditions Related to Best Usage.
Waters of this class are protected as
water supplies which are generally in
moderately to highly developed
watersheds or protected areas;
discharges which qualify for a General
Permit pursuant to 15A NCAC 2H
.0127, trout farm discharges, recycle
(closed loop) systems that only
discharge in response to 10-year storm
events, other stormwater discharges and
domestic wastewater discharges are
allowed in the protected and critical
areas; treated industrial wastewater
discharges are allowed in the protected
and critical areas; however, new
industrial wastewater discharges in the
critical area are required to meet the
provisions of 15A NCAC 2B
.0201(d)(l)(B)(iv), (v) and (vii), and
15A NCAC 2B .0203; new industrial
connections and expansions to existing
municipal discharges with a

pretreatment program pursuant to 15A
NCAC 2H .0904 are allowed; the
waters, following treatment required by
the Division of Environmental Health,
will meet the Maximum Contaminant
Level concentrations considered safe for
drinking, culinary, or food-processing
purposes which are specified in the
national drinking water regulations and
in the North Carolina Rules Governing
Public Water Supplies, 15A NCAC
18C .1500; sources of water pollution
which preclude any of these uses on
either a short-term or long-term basis
will be considered to be violating a
water quality standard;
(3) Quality Standards Applicable to Class
WS-IV Waters:

(A) Sewage, industrial wastes,
non-process industrial wastes, or other
wastes: none except for those
specified in Subparagraph (2) of this
Paragraph and Rule .0104 of this
Subchapter; and none which will have
an adverse effect on human health or
which are not effectively treated to
the satisfaction of the Commission
and in accordance with the
requirements of the Division of
Environmental Health, North Carolina
Department of Environment, Health,
and Natural Resources; any
discharges or industrial users subject
to pretreatment standards may be
required by the Commission to
disclose all chemical constituents
present or potentially present in their
wastes and chemicals which could be
spilled or be present in runoff from
their facility which may have an
adverse impact on downstream water
supplies; these facilities may be
required to have spill and treatment
failure control plans as well as
perform special monitoring for toxic
substances;

(B) Nonpoint Source and Stormwater
Pollution: none that would adversely
impact the waters for use as water
supply or any other designated use;

(i) Nonpoint Source and Stormwater

Pollution Control Criteria For

Entire Watershed or Protected

Area:

(I) Low Density Option:

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1758

PROPOSED RULES

Development activities which
require a

Sedimentation/Erosion Control
Plan in accordance with 15A
NCAC 4 established by the
North Carolina Sedimentation
Control Commission or
approved local government
programs as delegated by the
Sedimentation Control
Commission must be limited to
no more than either: two
dwelling units per acre or 24
percent built-upon on area; or
three dwelling units per acre
or 36 percent built-upon area
for projects without curb and
gutter street system in the
protected area outside of
critical area;
(II) High Density Option: If new
development activities which
require a

Sedimentation/Erosion Control
Plan exceed the requirements
of Subparagraphs (f)(3)(B)(i)(I)
of this Rule then development
must control the runoff from
the first inch of rainfall; new
development not to exceed 70
percent built-upon area;

(III) Land within the critical and
protected area will be deemed
compliant with the density
requirements if the following
two conditions are met: The
density of all existing
development at the time of
reclassification meets the
density requirement when
densities are averaged
throughout the entire area; All
new development meets these
density requirements on a
project-by-project basis;

(IV) Clustering of development is
allowed on a project-by-project
basis as follows: Overall
density of the project meets
associated density or
storm water control
requirements; Built-upon areas
are designed and sited to
minimize stormwater runoff
impact to the receiving waters

and minimizes concentrated
stormwater flow; Remainder of
tract to remain in vegetated or
natural state;
(V) If local governments choose
the high density development
option which requires
engineered stormwater
controls, then they will assume
ultimate responsibility for
operation and maintenance of
the required controls as
outlined in Rule .0104(f) of
this Subchapter;
(VI) Minimum 100 foot vegetative
buffer is required for all new
development activities that
exceed the low density option
requirements as specified in
Subparagraphs (f)(3)(B)(i)(I)or
(f)(3)(B)(ii)(I) of this
Paragraph, otherwise a
minimum 30 foot vegetative
buffer for development is
required along all perennial
waters indicated on the most
recent versions of U.S.G.S.
1:24,000 (7.5 minute) scale
topographic maps or as
determined by local
government studies; nothing in
this Section shall stand as a
bar to desirable artificial
streambank shoreline
stabilization;
(VII) No new development is
allowed in the buffer; water
dependent structures, and
public projects such as road
crossings and greenways may
be allowed where no
practicable alternative exists;
these activities shall minimize
built-upon surface area, divert
runoff away from surface
waters and maximize the
utilization of BMPs;
(VIII) Maintain inventory of all
hazardous materials used and
stored in the watershed or
protected area; spill/failure
containment plan and
appropriate safeguards against
contamination are required;
waste minimization and

1759

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PROPOSED RULES

appropriate recycling of
materials is encouraged;
(ii) Critical Area Nonpoint Source
and Stormwater Pollution Control
Criteria:
(I) Low Density Option: New
development activities which
require a

Sedimentation/Erosion Control
Plan in accordance with 15A
NCAC 4 established by the
North Carolina Sedimentation
Control Commission or
approved local government
programs as delegated by the
Sedimentation Control
Commission must be limited to
no more than two dwelling
units per acre or 24 percent
built-upon area;
(II) High Density Option: If new
development density exceeds
either two dwelling units per
acre or 24 percent built-upon
area then engineered
stormwater controls must be
used to control runoff from the
first inch of rainfall; new
development not to exceed 50
percent built-upon area;

(III) No new permitted sites for
land application of
sludge/residuals or petroleum
contaminated soils are allowed;

(IV) No new landfills are allowed;

(C) Odor producing substances contained
in sewage, industrial wastes, or other
wastes: only such amounts, whether
alone or in combination with other
substances or waste, as will not cause
taste and odor difficulties in water
supplies which can not be corrected
by treatment, impair the palatability
of fish, or have a deleterious effect
upon any best usage established for
waters of this class;

(D) Phenolic compounds: not greater than
1 .0 ug/1 (phenols) to protect water
supplies from taste and odor problems
due to chlorinated phenols; specific
phenolic compounds may be given a
different limit if it is demonstrated not
to cause taste and odor problems and
not to be detrimental to other best
usage;

(E) Total hardness: not greater than 100
mg/1 as calcium carbonate;

(F) Total dissolved solids: not greater
than 500 mg/1;

(G) Toxic and other deleterious
substances:

(i) Water quality standards
(maximum permissible
concentrations) to protect human
health through water consumption
and fish tissue consumption for
non-carcinogens in Class WS-IV
waters :
(I) Barium: 1.0 mg/1;
(II) Chloride: 250 mg/1;

(III) Manganese: 200 ug/1;

(IV) Nickel: 25 ug/1;

(V) Nitrate nitrogen: 10.0 mg/1;
(VI) 2,4-D: 100 ug/1;
(VII) 2,4,5-TP (Silvex): 10 ug/1;
(VIII) Sulfates: 250 mg/1;
(ii) Water quality standards
(maximum permissible
concentrations) to protect human
health through water consumption
and fish tissue consumption for
carcinogens in Class WS-IV
waters :
(I) Beryllium: 6.8 ng/1;
(II) Benzene: 1.19 ug/1;
(HI) Carbon tetrachloride: 0.254

ug/1;
(IV) Chlorinated benzenes: 488

ug/1;
(V) Dioxin: 0.000013 ng/1;
(VI) Hexachlorobutadiene: 0.445

ug/1;
(VII) Polynuclear aromatic

hydrocarbons: 2.8 ng/1;
(VIII) Tetrachloroethane (1,1,2,2):
0.172 ug/1;
(IX) Tetrachloroethylene: 0.8 ug/1;
(X) Trichloroethylene: 3.08 ug/1;
(XI) Vinyl Chloride: 2 ug/1;
(XII) Aldrin: 0.127 ng/1;

(XIII) Chlordane: 0.575 ng/1;

(XIV) DDT: 0.588 ng/1;
(XV) Dieldrin: 0.135 ng/1;

(XVI) Heptachlor: 0.208 ng/1;
(g) Class WS-V Waters.
(1) Best Usage of Waters. Waters

protected as water supplies which are
generally upstream and draining to
Class WS-IV waters or waters
previously used for drinking water

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1760

PROPOSED RULES

supply purposes; no categorical
restrictions on watershed development
or wastewater discharges are required,
however, the Commission or its
designee may apply appropriate
management requirements as deemed
necessary for the protection of waters
downstream of receiving waters (15A
NCAC 2B .0203); suitable for all Class
C uses;

(2) Conditions Related to Best Usage.
Waters of this class are protected water
supplies; the waters, following
treatment required by the Division of
Environmental Health, will meet the
Maximum Contaminant Level
concentrations considered safe for
drinking, culinary, or food-processing
purposes which are specified in the
national drinking water regulations and
in the North Carolina Rules Governing
Public Water Supplies, 15A NCAC
18C .1500; sources of water pollution
which preclude any of these uses on
either a short-term or long-term basis
will be considered to be violating a
water quality standard;

(3) Quality Standards Applicable to Class
WS-V Waters:

(A) Sewage, industrial wastes,
non-process industrial wastes, or other
wastes: none which will have an
adverse effect on human health or
which are not effectively treated to
the satisfaction of the Commission
and in accordance with the
requirements of the Division of
Environmental Health, North Carolina
Department of Environment, Health,
and Natural Resources; any
discharges or industrial users subject
to pretreatment standards may be
required by the Commission to
disclose all chemical constituents
present or potentially present in their
wastes and chemicals which could be
spilled or be present in runoff from
their facility which may have an
adverse impact on downstream water
supplies; these facilities may be
required to have spill and treatment
failure control plans as well as
perform special monitoring for toxic
substances;

(B) Nonpoint Source and Stormwater

Pollution: none that would adversely
impact the waters for use as water
supply or any other designated use;

(E) Total hardness: not greater than 100
mg/1 as calcium carbonate;

(F) Total dissolved solids: not greater
than 500 mg/1;

(G) Toxic and other deleterious
substances:

(i) Water quality standards
(maximum permissible
concentrations) to protect human
health through water consumption
and fish tissue consumption for
non-carcinogens in Class WS-V
waters:
(I) Barium: 1.0 mg/1;
(II) Chloride: 250 mg/1;

(III) Manganese: 200 ug/1;

(IV) Nickel: 25 ug/1;

(V) Nitrate nitrogen: 10.0 mg/1;
(VI) 2,4-D: 100 ug/1;
(VII) 2,4,5-TP (Silvex): 10 ug/1;
(VIII) Sulfates: 250 mg/1.
(ii) Water quality standards
(maximum permissible
concentrations) to protect human
health through water consumption
and fish tissue consumption for
carcinogens in Class WS-V
waters :
(I) Beryllium: 6.8 ng/1;
(II) Benzene: 1.19 ug/1;
(III) Carbon tetrachloride: 0.254
ug/1;

1761

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PROPOSED RULES

(IV) Chlorinated benzenes: 488

ug/1;
(V) Dioxin: 0.000013 ng/1;
(VI) Hexachlorobutadiene: 0.445

ug/1;
(VII) Polynuclear aromatic

hydrocarbons: 2.8 ng/1;
(VIII) Tetrachloroethane (1,1,2,2):
0.172 ug/1;
(IX) Tetrachloroethylene: 0.8 ug/1;
(X) Trichloroethylene: 3.08 ug/1;
(XI) Vinyl Chloride: 2 ug/1;
(XII) Aldrin: 0.127 ng/1;

(XIII) Chlordane: 0.575 ng/1;

(XIV) DDT: 0.588 ng/1;
(XV) Dieldrin: 0.135 ng/1;

(XVI) Heptachlor: 0.208 ng/1.
(h) Class B Waters.

(1) Best Usage of Waters. Primary
recreation and any other best usage
specified by the "C" classification;

(2) Conditions Related to Best Usage. The
waters will meet accepted standards of
water quality for outdoor bathing places
and will be of sufficient size and depth
for primary recreation purposes.
Sources of water pollution which
preclude any of these uses on either a
short-term or long-term basis will be
considered to be violating a water
quality standard;

(3) Quality standards applicable to Class B
waters :

(A) Sewage, industrial wastes, or other
wastes: none which are not
effectively treated to the satisfaction
of the Commission; in determining
the degree of treatment required for
such waste when discharged into
waters to be used for bathing, the
Commission will consider the quality
and quantity of the sewage and wastes
involved and the proximity of such
discharges to waters in this class;
discharges in the immediate vicinity
of bathing areas may not be allowed if
the Director determines that the waste
can not be reliably treated to ensure
the protection of primary recreation;

(B) Organisms of coliform group: fecal
coliforms not to exceed geometric
mean of 200/100 ml (MF count)
based on at least five consecutive
samples examined during any 30-day
period and not to exceed 400/100 ml

in more than 20 percent of the
samples examined during such period.

Statutory Authority G.S. 143-214.1;
143-215. 3(a)(1).

SUBCHAPTER 2H - PROCEDURES
FOR PERMITS: APPROVALS

SECTION .0300 - SEPTIC TANK SYSTEMS

.0301 SCOPE

(a) This Section of rules governs the subsurface
di s po s al of wa s tewater under the jurisdiction of the
Environmental Management Commi s sion. — This

includes subsurface disposal ef- industrial

wastewater and subsurface disposal of sewage from

public — ©f — community — sewage — systems. The

Commis s ion for Health Services has jurisdiction
over all — other non discharging sanitary s ewage
di s posal systems.

{©) Definitions. For the purpose of these

Regulations, the following definition s s hall apply:

fB Alluvial — Soils. The — tepm — "alluvial

soils" shall mean stratified soils without
di s tinct horizon s , — deposited — by — flood
waters.

(2-) Approved. — The term "approved" shall

mean that which has been considered
acceptable to the state or local agency.

0) Approved Sewerage System. — The term

"approved sewerage system" shall mean
a public, — community or institutional
sewerage system for the collection and
treatment — of sewage — or other — liquid
wa s tes — con s tructed — etn4 — operated — m

compliance with applicable

requirements — ef- — the — state — ©f — local
agency.

(4) Areas — Subject to — Frequent — Flooding.

The term — "areas — subject to — frequent
flooding" — shall — mean — those — areas
consisting of alluvial soils, indicating
s oil s deposited from flooding of less
than a 10 year frequency.

f§-) Horizon. The term — "horizon" — shall

mean a — layer of soil. — approximately
parallel to the surface, that ha s di s tinct
characteristics produced by soil forming
processes.

te) "Local health director" means the local

health — director — as — defined — m — &-Sr

1 30A 2(6) »f h+s authorized

representative.
{Jj Nitrification Field. The term

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1762

PROPOSED RULES

tm-

H3^

hd-

H4+-

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<4£-,

"nitrification — field" — sheH — mean — the
system — of nitrification — line s — et — field
lateral lines which receive the septic
tank effluent.

Nitrification — Line s — &f — Field — Lateral
Line s . — The term s "nitrification lines"
or "field lateral lines" shall mean the
open jointed — pipe. — drain — line s , — er
especially — de s igned — porous — block s
which receive the septic tank effluent

fef nitrification, distribution and

absorption.
Organic — Soil s .

The — teffH — "organic

soils" shall mean those organic mucks
and peat s con s isting of more than 20
percent organic matter to depths of 18
inches or greater.

Ped. — The term "ped" s hall mean a unit
of soil s tructure such as an aggregate,
crumb, — pri s m, — block, — &f — granule,
formed by natural processes.
Perch. — The term "perch" s hall mean
restricting vertical movement of liquids.
Per s on. — The term "per s on" shall mean
any — individual, firm, a ss ociation.

organization, partnership, busine s s

trust, corporation or company.

Place of Business. — The term "place of

bu s ine ss " s hall mean and include any

store, warehou s e, manufacturing

e s tabli s hment, place of amu s em e nt or

recreation, s ervice station, office

building, or other place s where people

work.

Place of Public Assembly. — The term

"place of public a ss embly" shall mean

artd — include fairgrounds, — auditoriums.

s tadium s , churches. campgrounds.

theaters, and other place s where peopl e
a ss emble.

Septic Tank. — The term "septic tank"
s hall — mean — a — water tight. — covered
receptacle designed and constructed to
receive the di s charge of s ewage from a
building sewer; separate scttlcablc and
floating solids from the liquid; dige s t
organic matter by anaerobic bacterial
action; store digested solids through a
period of detention; and allow clarified
liquids — te — di s charge — for- — additional
treatment and final di s po s al.
"Septic Tank System" or "Conventional
Septic Tank Sy s tem" means a ground

ab s orption sewage treatment and

disposal system con s i s ting of a septic

H^r-

tnnk, a gravity fed nitrification field,
nece ss ary pipe lines, conduits. — pump

s tation s , and — other — appurtenances

required fef proper collection.

distribution. treatment. disposal.

operation, and performanc e .
"S e wage" — means the liquid and solid
human body waste. — and liquid waste
generated — by — dome s tic — water u s ing
fixtures and appliances, including those

a ss ociated with food handling. The

term docs not include industrial process
wa s tewater or sewage that i s combined
with industrial wastewater.

(+8-) Sewer Connection. — The term " s ewer

connection" — shall — mean a connection
with an approved community or public
sewerage sy s tem which provides for the
collection — and disposal — of s ewag e — ©f
other liquid waste s .

Site. — The term "site" shall be that area
in which the s eptic tank system is to be
located — and — the — area — required — to

my-

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accommodate and permit proper

functioning of the system.
Soil. — The term "soil." for the purposes
of subsurface — s ewage — disposal. — shall
mean the unconsolidated mineral and
organic material on the land s urfac e . — k
consists of sand. silt, and clay minerals
and — variable — amounts — ©f- — organic

materials

4t — exi s ts — as — natural.

undi s turbed — material — or as — di s turbed
material (such a s cut and fill).

{34-) Setl — Absorption — Sy s tem. The — term

"soil absorption s y s tem" shall mean a

system — that — utilizes — the — setl — fef

absorption of treated sewage.

State or Local Agency. — The term "state

or local agency" shall mean the state or

local agency having jurisdiction, or its

authorized representative.

Structure. — The term "structure" (as it

relate s — te — soils) — shaH — mean — the
arrangement of primary soil particle s
into compound particles or clu s ter s that
are s eparated from adjoining aggregate s
and have properties unlike tho s e of an
equal — mass — of unaggrcgated — primary
soil particles.
Sub s urface — Di s po s al. TTte — term

" s ub s urface disposal" — shall — mean the
proce ss of s ewage treatment i n which
sewage effluent is applied to land by
distribution beneath the s urface of the

7763

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December 15, 1993

PROPOSED RULES

)

ground — through — open jointed — pipes,

approved drains ef approved

specially designed porou s block.

{e) Sanitary Sewage Disposal Requirements.

Every residence, — place of business or place of
public — assembly — as — defined — herein, — shall — be
provided — with — either — an — approved — number of
privies — construct e d — m — accordance — with — the
requirements — ef- — the — Commission — fef — Health
Services, — a — septic — tank- — system — constructed — in

accordance with the provisions — ef- — these

Regulations, or connection to an approved sewer
system .
(d) Construction

(t) Septic Tank

{A) — The — "septic — tank" — s hall — be — ef
water tight construction, — structurally
sound and not subject to e xcessive

corrosion — ef — decay. Tanks — ef

rectangular — de s ign, — similar — te — that
s pecified — in — Division — ef — Health
Services Bulletin No. 519, approved
by the State Board of Health March
¥h — 1960, — afe — recommended. — ff
prefabricated tanks, or tanks of other
design — afe — u s ed, — they — shaH — be
constructed in accordance with plans
which — have — been — approved — by — the
state agency, and shall comply with

aH other — requirements ef- — this

Subdivision. — Septic tanks of 1 ,600
gallon liquid capacity or larger shall
be of two compartment de s ign and
construction. The inlet compartment
of a two compartment tank s hall be
between two thirds and three fourths

e-f- t-h-e total capacity.

Two compartment — septic — tanks — afe
recommended for tanks of less than
1,600 — gallon — capacity. — A — dosing
syphon or pump shall be used for

discharging s eptic effluent inte

nitrification lines when the volume of
the tank is more than 3,000 gallon s
and the total length of such lines is

500 feet or more. When the total

length of such line s i s 1 ,000 feet or
more, alternating syphons or pumps

shaH — be — used. Discharges — from

syphon or pump systems shall be of
such — design — se — as — te — f+H — the
nitrification lines 60 percent to 75
percent — ef- — their — capacity — at — each
discharge.
{B} — Minimum liquid capacities for septic

tank s s hall be in accordance with the
following:

{+) Residential Septic Tanks (for each

individual residence)

NumbcrMinimum

Equivalent

Bedroom

gallons
gallon s
gallons

ofLiquidCapacity per

Bedroom s Capac ity

2 or l es s750 gallons3 7 5

3 or lcss900 gallon s 3

4 or less 1,000 gallons250

For each additional bedroom add 250 gallon s .
These figure s provide for use of garbage grinder s ,
automatic clothes washers, and other household
appliances.

(it) Septic Tank Other Than Re s idcn

tiah — Septic tank for commercial
or institutional installations shall
be sized — according — to accepted
engineering practices and the size
of each installation shall be deter
mined on the basis of specific
needs. — For determining required
minimum capacities for installa
tions serving other than residene
cs, use the daily flows in Rcgula
tion .030 4 of this Section.

(fit) T-he — minimum — capacity — of any

septic tank s hall be 750 gallons.
fe) — Sites for Soil Ab s orption Systems

{¥) Site Evaluation. The s tate or local

agency shall investigate each proposed
site: — The inve s tigation shall include the
e valuation of the following factors:
(A) — Topography;
fB) — Soil characteristics:
(f) texture.

(if) s tructur e ,

f+it) depth,

fiv-) re s trictive horizon s ,

fv} drainage;

{€) — Ground water elevation;
fD) — Depth of imperviou s s trata;
{E} — Percolation Tests. — Evaluations shall
be made in accordance with Regula
tion .0302 of thi s Section, and other
accepted — public — health — principle s .
Based on thi s evaluation, each of the

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December 15, 1993

1764

PROPOSED RULES

factors [Items (A) to (E) of this Sub
division] shall be classified as suit
able, provi s ionally suitable, or unsuit
able.

f2-) Application Rates

{A) — In determining the volume of sewage
from residences, the flow rate shall be
75 gallons per person per day: and
each bedroom s hall be considered the
equivalent of two persons. — For estab
lishmcnts other than residences, the
flow rate shall be determined from
Regulation .030 4 of this Section. — in
calculating the amount of square feet
of area needed for the nitrification
field in trench system, the maximum
trench width u s ed in the calculation s
shall be 36 inches, even though the
actual trench width may be construct
ed larger. — Trenches s hall be not le ss
than eight feet on centers. — The state
or local agency may permit the use of
a bed system in lieu of a trench s y s
tern for the nitrification field when it
has been determined that the trench
s y s tem — is — impractical — or impo ss ible
because of topography or space limi
tation s . — In such cases, the amount of
square feet of area needed shall be
increased — by — 50 percent over what
would be required for a trench sys
tern: or in lieu of the added area, the
amount of gravel or stone under the
drain — lines s hall — be increased to a
depth of not less than 12 inche s . — T-he
extra area i s needed to compensate for
the loss of trench s idcwall area in bed
systems. — Drain line s s hall be at lea s t
18 inche s from the side of the bed and
shall not be le ss than three feet on
centers.
f&) — Site s cla s sified as suitable may receive
application of s eptic tank effluents up
te — 1.5 gallon s per s quare foot per

OflV.

f&) — Sites classified a s provi s ionally suit
able may receive septic tank effluents
up to 0.75 gallons per s quare foot per
day-; — except that — where percolation
rates exceed 60 minute s per inch, the
application rate shall not exceed 0.5
gallons per square foot per day.

{©} — Sites classified as unsuitable shall not
be u s ed for s oil ab s orption disposal
s y s tem s . unle ss engineering.

hydrogeologic. an4 setl studies

indicate to the state or local agency
that a suitable septic tank system or a

s uitabl e alternate system ea-n-

reasonably — be expected to — function
satisfactorily.

i$) Available — Space. Sites — shaW — have

s ufficient available s pace to permit the
installation and proper functioning of
ground — absorption — sewage — di s po s al
systems, based upon the square footage
of nitrification — field required for the
application rate previously determined.
Sites classified as provisionally suitable
should have sufficient available space to
accommodate a replacement nitrification

field. AH — systems — wi#) — a — de s ign

capacity of over 3.000 gallons per day
shall have provided sufficient area to
accommodate a replacement nitrification

feMr

fft — Location of Septic Tank Systems

fB Every — septic — task- — system — shaW — be

located at least the minimum horizontal

distance from the following:

{Ar> — any private water supply: — 100 feet.

or maximum fea s ible distance, but in

no ease less than 50 feet:

ffr) — any community water supply: 1-09

£ -. ~* ■
TTTCTT

{Gj — s tream s — classified — as — WS I. — WS II.
WS III: 50 feet;

{©) — waters clas s ified as SA: 1 00 feet

from normal high tide mark;
(E-) — any other stream. — canal. — marsh or

coa s tal water s : — 50 feet;

fR — any class I or class — II impounded

reservoir used as a source of drinking

water: — 100 feet from high water line;

f&) — any other lake or impoundment: — 50

feet from high water line;
{Hj — any building foundation: — 10 feet:
<+) — any ba s ement: — 15 feet;
{}) — any property line: — 10 feet;
fK-) — top of s lope of terraces, embankments

or cuts: — 15 feet;
ft) — any water line: — 10 feet.

{3} Septic — tank- — systems — shaW — Ret — be

installed in fill ground unless the site

complies esse ntially with tbe

requirements of these Regulation s , and
i s s pecifically approved by the state or
local agency.

(3-) Septic — tank — s y s tem s — s hall — not — be

installed in swampy areas.

1765

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December IS, 1993

PROPOSED RULES

44) Septic tanic sy s tems shall be located

downhill — from — wells — ef — springs, — if
possible.

45) Septic tank system s shall not be located

in areas subject to frequent flooding.

4€) Septic tank systems shall not be located

where — ground — water — may — become
contaminated.

(7) Septic tank s y s tem s s hall not be located

under paved areas or driveways, except
that a solid cast iron or other suitable
pipe may be permitted to convey the
effluent — under — a — driveway — from — the
s eptic tank to the nitrification field.
4g) — Maintenance

fh) Septic Tank s . — Any person owning or

controlling the property upon which a

septic tank system is installed shall be

responsible — fef — the — following — items

regarding — the — maintenance — ef- — the

s y s tem :

4-A) — Septic tank s s hall be maintained at all

times to prevent seepage of sewage or

effluents to the surface of the ground.

4fS) — Septic tanks need occa s ional cleaning

and should be checked at least each

three — years — to determine — if sludge

need s — removing — (once — a — yeaf — if

garbage grinder s arc discharging to

the tank),

4G) — Contents removed from septic tanks

shall be discharged into an approved

sewer system, buried or plowed under

at — an — approved — l ocation — within — 34

hours, or otherwise disposed of at a

location and in a manner approved by

the state or local agency.

(h) Permits

fB No person shall install or cause to be

installed — any s ewage disposal — s y s tem
above — 3,000 gallons — de s ign — capacity
without first having obtained a written

permit from the Divi s ion ef

environmental — management. Permits

s hall become invalid after 12 months
from — the — date — ef- — issuance, — if- — the
installation — has — net — been — completed

during — that — time — period, unless

otherwise specified in writing. When a
permit — has — become — invalid, — the
installation shall not be commenced or
completed until a new permit has been
obtained.

{3} Any — person — other — than — the — owner,

tenant or manager of a residence, place

ef- — bu s ines s , — ef — place — ef- — public
assembly, who engages in the busine s s
of con s tructing or installing septic tank
systems, of the cleaning of septic tonics,
shah — regi s ter — whh — the — leeal — health
director — m — the — county — where — he

operates before constructing ef

in s talling — septic — tank — systems, — ef
collecting and disposing of septic tank
contents.

Statutory Authority G.S. 130A-335; 143-215.1.

.0302 TECHNICAL GUIDE FOR
EVALUATION OF SOIL
ABSORPTION SITES

4tt) — Purpo s e. — This technical guide shall be used
tfi — the — evaluation — ef- — proposed — sites — fef — set!
ab s orption s y s tems except where the state or local
agency — determine — that — peculiar — ef — unusual
circumstances ju s tify the u s e of other criteria
which shall be con s i s tent with good public health
practice.
4h) — Site Factors

4±j Topography

(A) — In order to determine whether a site
can be used for dispo s ing of a septic
tank — effluent, — a number of factors
s hall — be — taken — wte — consideration.
These factors include topography, soil

characteristics, ground water

elevation, depth of impervious strata,
and percolation tests.
4&) — Uniform s lope s under 15 percent s hall
be considered suitable with respect to

topography. When slopes are le ss

than two percent, provisions shall be
made to insure good surface drainage
of rainfall or runoff from buildings or
paved areas. — Complex slope patterns
and slopes dissected by deep gullies

and ravines arc not suitable. The

surface — area — ea — ef — around — a — seH
absorption system shall be graded to
provide adequate drainage; and s uch
a system shall not be located in a

depressed — area. Good — surface

drainage — is — essential — and — shah — be
provided to — prevent soil — s aturation
around — the — s y s tem — during — rainy
periods.
{€) — Uniform slopes between 15 percent
and 30 percent shall be considered
provisionally suitable with respect to
topography, if the soils are deep and

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December 15, 1993

1766

PROPOSED RULES

there — a+e — ne — restrictive — horizons.
Complex — slope pattern s and — slopes
dissected by deep gullie s and ravines
are not suitable. — Slope s within this
range — may — require — installation — ef
drainage lines up s lope from the soil
absorption — system — te — remove — aW
excess water that might be moving
laterally through the s oil during wet
period s of the year. — The interception
of lateral — ground — water — movement
s hall be provided where necessary to
prevent soil saturation around the soil

absorption — system . Usable — area s

larger than minimum arc ordinarily
required in this slope range.
{&) — Slopes greater than 30 percent shall
be — considered — unsuitable — unless — a

thorough study ef- the smi

characteristics — indicate — that — a — se+1

absorption s ystem w+H function

satisfactorily — a+>d — sufficient — ground
area i s available to properly install
such a system.

{3} Se+1 — Characteristics. Unless — set}

characteristics — have — been — previously
established, soil borings shall be taken
i-n — the — area — te — be — used — fef — se+1
absorption systems. — Such borings shall
be taken to depth s of at least 4 8 inches.
From these soil borings and observation
of core samples, most of the significant
soil characteristics can be evaluated;
and a determination can be made as to
the — suitability — of the — se+1 — te — absorb
septic tank effluent. — The important soil

characteri s tic s which shall be

determined are as follows:
(A-) — Texture. — The relative amounts of the
different sizes of mineral particles in
a soil is referred to a s s oil texture.
All soil s arc composed of sand (2.0 to
0.05 mm in size), s ilt, which include s

intermediate sized particles that

cannot be seen with the naked eye,
but — feels — Itk-e — flour — when — pressed
between the fingers (0.05 to 0.002
mm — m — size). — and — e+ay; — which — is
extremely small in size and is the
mineral particle that give s cohe s ion to
a soil (less than 0.002 mm in size).
The texture of the different horizon s
of soils may be classified into three
general classes:
{+) Sandy Textures. — Soils that exhibit

a gritty feel when rubbed between
the fingers, — that crumble when
moi s t or wet, and that will not
leaf out when pressed between the
thumb and index finger, should be

classified as sandy textures.

Sandy soils contain more than 70
percent s and s ized particle s in the
soil mass. — These soils do not
have enough clay to be cohesive.

Sandy s oil s have favorable

percolation rates, but may have a

tew — filtering — capacity. Sandy

soils shall be considered suitable
with re s pect to texture.

{++) Loamy — Soils. When — moi s t or

wet^ — loamy soils may be rolled
into a ball that will stick together.

but — is — ea s ily — cru s hed. When

pressed — between — the — fingers,
loamy — se+1 — w+H — leaf out — from
between the fingers to one fourth
to one half inch before breaking.
Loamy s oils contain le ss than 70
percent — sand size — particles — and
more than — 18 percent clay sized
particle s in the soil mas s . — They
exhibit — little — ef — r+e — stickiness.

Loamy sei+s gen e rally have

favorable percolation rates and are
excellent filters. — Loamy soils are
the — most — desirable — te+ — e ffluent
treatment and shall be considered
s uitable with respect to texture.

{+++) Clayey — Soil s . The s e — ate — s oil s

with more than 4 percent of the
se+1 — mass — made — up — ef- — e+ay

particle s . Clay e y — s oil s . — when

moi s t or wet, may be rolled into a
compact, smooth ball and resi s t
pressure — when — crushed — between

the — finger s . When — wet — aad

pressed — between — the — finger s ,
clayey soils will leaf out one half
tneh — er — more — i-n — length — before
breaking. — The type or kind of
clay in soils is very significant.
There — a+e — twe — major type s — ef

clay s : the — 1:1 clay s (kaolinite)

which does not shrink when dry
or swell when wet; and the 2:1
clays (montmorillonite) that will
s hrink when dry and s well when
wet; — The 2:1 clays crack when
dry and allow water or s eptic tank

1767

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NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

effluent to move freely through
the soil for 4 8 to 72 hours. — They
then become saturated and swell,
resulting — m — He — movement — ef
liquids through the soil. — The 2 : 1
clays may sometimes be identified
by the pre s ence of cracks in the
s oil when dry, and are plastic and
s ticky when wet. The s e clays will
have an olive and greyish mottled

appearance, e-f splotches

intermingled with the yellow and

red clay color s . The — t-r4 — etay

soils shall be con s idered

provisionally suitable as te

texture; 2*4. clays — shall — be

considered unsuitable as te

texture.

dcred

f+v) Organic soils shall be consi

unsuitable as to texture.

fB) — Soil Structure. In many soils, the

sand, silt, and clay particle s tend to
cling or stick to one another to form
a ped or a clump of soil. This is

known — as — se+1 — structure. Seii

structure may have a significant effect
on the movement of effluent through
a soil. — The s tructure may determine
the — pate — ef- — movement — ef- — liquids
through clayey soils. — Structure i s not
very important in s andy textured s oil s
or in loamy textured soils, and these
typ e s — of soils — s hall — be — considered
s uitable as to structure. — The three
kind s of s oil s tructure that are mo s t
significant — m — movement — of sewage
effluent — through — s oil s — are — blocky,
platy, — at+d — the — ab s enc e — ef- — se+1
structure of massive conditions:

ft Blocky Soil Structure

ft) tfl — clayey — s oil s . — if the — sett

exhibits many peds or angular
and subrounded peds, then the
s oil s — have — blocky — s tructure.
The sewage effluent may move
between the — cracks — of these
blocky typ e s of ped s . — Blocky
soil structure in clayey s oil s i s

frequently de s troyed by

mechanical equipment

manipulating the s oil when it

is — tee — wefc Trenche s — fef

nitrification lines being placed
«i — clayey — setts — with — blocky
structure should only be dug

when s oils arc moist or dry.
Blocky soil structure in clayey

soils — s hall be — con s idered

provisionally — suitable — as — te
structure.

(ft Some — rocks, — even — though

weathered, — s uch as slates or
crevices — ©f — fractured — rocks,
exhibit blocky s tructure, which
+s — net — changed — by — moving
water, thereby allowing fluids
te — move — downward — without
filtration. — Such soils shall be
considered — unsuitable — as — te
structure.

fit) Platy Soil Structure. If clayey

soils fall out into platelike s heets,
then the soils would have platy
s tructure; — and water or effluent
movement through these horizons
would be extremely s low, and the
structure — she+1 — be — con s idered
unsuitable.

(tit) Absence of Soil Structure. — Some

clayey soils exhibit no structure
aggregates; and in these kind s of
s oil s , percolation would be zero
or extremely slow. — Such s tructure
shall be considered unsuitabl e .

f&) — Se+1 — Depth . The — depth — ef- — seits

classified a s s uitable or provi s ionally
suitable as to texture and s tructure
shall — be — at — least — 48 — inches — when

conventional ground absorption

s ystem s are to be utilized.

(©) — Restrictive — Horizons. Re s trictive

layer s — et= — horizon s — m — seits — may
generally — be — recognized — by — the
resistance offered in digging a hole or

in — u s ing a s oil — auger. Re s trictive

horizons — are variable m — their

characteristics. Massive — e+ — solid

bedrock — may — be — classed — as — a

restrictive — horizon. Where — this

bedrock lies shallower than 48 inche s
to the surface, it will perch s ewage
effluent and in many instance s will
allow — sewage — e ffluent — te — move
laterally and s eep to the surface on a
lower part of the landscape. — Another
re s trictive horizon may be cau s ed by
iron pans or plinthite. These horizons
may generally be recognized by their
brittleness and by the pre s ence of red
and grey colored s oil materials. — The

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December 15, 1993

1768

PROPOSED RULES

red materials quite frequently will be
in the form of nodules or very brittle
fragments, — These kind s of horizons
will also perch sewage effluent and
limit the storage capacity of a soil
being used for di s position of effluent.
The third common restrictive horizon
is a cemented iron aluminum organic
hardpan. — This is very brittle when
dry and will perch s ewage effluent.
Soils in which restrictive horizon s are
less than 4 8 inches below the ground
surface or le ss than 12 inche s below
the — trench — bottom — ef- — subsurface
nitrification line s s hall be considered
unsuitable. — except — m — cases — where
restrictive horizon s occurring close to
the ground surface have underlying
setl — stratas — suitable — fef — s ub s urface
disposal, and the ground water table
ts — at — teas* — 48 — inche s — below — the

restrictive horizon. In these cases,

the soil shall be con s idered s uitable
with respect to restrictive horizons,
provided — the — restrictive — horizon — is
penetrated.
{E) — Soil Drainage. — Soils with seasonally
hhjh — water — table s — are — ef- — major
concern in evaluating sites for sewage
effluent di s po s al. — These are the soil
areas that give good percolation rate s
during dry sea s ons of the year but
force sewage effluent to the surface
during the wetter s ea s on s . — Th e depth
of the s easonal high water table can
commonly — be — recognized — by — those
examining s oil profile s . — The criteria
for recognition of high water tables is

that — ef- — setl — color. Sub s urface

horizons that are in colors of reds,
yellow s and brown s indicate good s oil
aeration and drainage throughout the
year. — Subsurface horizons that are in
colors of grey, olive or bluish colors
indicate poor aeration and poor soil

drainage. These — du+1 — ef — greyi s h

colors may occur a s a s olid ma s s of
soil or may be in mottles or localized
s pots. — The volume of greyish colors
is indicative of the length of time that
free water s tand s in that s oil profile.
There are soils that have light colored
mottles — which — afe — rehe — from — the
light colored — reek — from — which — the
s oil s — have — weathered. The s e — soils

would not have highwater tables, so
one mu s t distinguish between a true
soil composed of sand, silts and clays,
or the rock material that may still

exi s t in th e s oil profile. Any soil

profile that ha s the greyish — color s ,
indicative of high wat e r tablca, or i3
subject to tidal or periodic high water,
within 36 inches of the surface shall
generally be considered unsuitable as

te — drainage. Where — the — setl — ts

considered s uitable as to structure and
textur e , — and — modifications — ean — be
made to keep the ground water table
at lea s t 12 inches below the bottom of
the — trench, — stteh — setis — shall — be
con s idered provisionally suitable as to
drainage.

{M Percolation Tests. Unless sett

characteristic s — have — been — previously
established, at least three percolation
te s ts s hall be made in the exact area
where the nitrification lines are to be
installed. — Such percolation tests shall
be — conducted — m — accordance — with
procedures outlined in DHS Bulletin
No. 519, approved by the State Board
of Health on March 17, I960. If the
average time for the water to fall one
inch in the test hole is 30 minute s or
less — the — percolation — test — shall — be
considered suitable; between 30 minutes
and 60 minute s , provi s ionally suitable;
and — ever — 60 — minutes, — un s uitable.
However, — tf- — the — set} — texture — and
structure are classified as s uitable or
provisionally suitable, percolation rates
up to 120 minutes may be con s idered

provisionally — s uitable. There — is

dissension evef the validity ef

percolation tests. — It is certain that one
percolation hole on a site docs not
indicate the ability of a soil area to

handl e — sewage — effluent. Where

percolation — tests — afe — used, — three
percolation tests should be conducted in
the exact area that nitrification fields

w+H — be — installed. Variability — in

percolation te s t s re s ult for the following

reasons: percolation — test — hole s

repre s ent only a s mall portion of the
filter field; — root channels — em4 — worm
holes intercepting the percolation hole
will give erroneou s percolation re s ults;
moisture condition s at the time of the

1769

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December 15, 1993

PROPOSED RULES

)

percolation test w+H gtve wide

variability if) re s ults; mechanical

d i gging — ef — auger — boring — fef — the
percolation hole will often destroy soil
structure; dry clays, with s hrink s well
potential, — wtH — give good percolation
rates for a s long as 48 to 72 hours; the
characteristics — of sewage effluent arc
different from those of the water used
in percolation te s ts. — Soils with sandy
ef — loamy textured — profiles, — without
restrictive horizons, or in the absence
ef- — high — water — tables — w+H — g+ve
percolation rate s of less than 60 minutes

per inch. Soil s with clayey profiles

will commonly have percolation rate s of
greater — then — 60 — minutes — pef — inch,
dependent on s oil — structure, — kind of
clay, and past land use.

{4} Determination of Soil Suitability. — Ati

of the criteria under topography, s oil
characteri s tic s and p e rcolation te s ts [(1)
t© — (^) — of this — Subdivision] — shall — be
determined to be suitable, provisionally
suitable or unsuitable as indicated. — U
all criteria arc cla ss ified the s ame, that
classification will prevail. — However, it
ts — unlikely — that — aH — criteria — w+H — be
classified — the same — in all — situations.
Where — there — is — a — variation — m
classification of the s everal criteria, the
following shall be u s ed in making the

overall d e t e rmination, and is

summarized in Regulation .0305 of this
Section:
(A) — If the soil structure is classified as
unsuitable, the overall classification
will be un s uitable, regardles s of the
c la ss ification of the other criteria.
tB} — If the s oil texture — is classified — as
unsuitable, and the s oil structure i s
provi s ionally s uitable, the soil texture
may be reclassified a s provisionally
s uitable.
{€) — When — se+1 — depth — is — cla ss ified — as
un s uitable, it may be recla ss ified as
provisionally — s uitable — if- — shallower
trenches or a mound s ystem can be
constructed.
+©) — When — the — restrictive — horizon — is
classified un s uitable, it may be recla 3
sifted as suitable under the conditions
outlined in (2)(D) of thi s Subdivision.
fE) — When drainage (ground water level) is
unsuitable, it may be reclassified as

provisionally suitable under the condi -
tion s outlined in (2)(E) of this Subdi
vi s ion.
(F) — Percolation — rates — m — exce ss — ef- — 60
minutes, but not exceeding 120 min
ute s may be cla ss ified a s provisionally
s uitable under conditions outlined in
(3) of thi s Subdivi s ion.

f§-) Available Space. — Site s shall have suffi

cicnt — available — space — te — permit — the
in s tallation and proper functioning of
ground — absorption — sewage — dispo s al
s y s tem s , ba s ed upon the s quare footage
of nitrification — field required for the
application rate previously determined.
Site s cla ss ified a s provi s ionally suitable
should have sufficient available space to
accommodate a replacement nitrification
field. — All sy s tem s with a de s ign capaci
ty of over 3,000 gallons per day shall
have provided s ufficient area to accom
modate a replacement nitrification field.

f6) Application Rat es . — In determining the

volume of sewage from residence s , the
flow rate shall be 75 gallons per per s on
per day; and each bedroom shall be
considered the equivalent of two per

s on s . For e s tabli s hments other than

residence, the flow rate s hall be deter
mined from Regulation .030 4 of thi s
Section. — In calculating the amount of
square feet of area needed for the nitri
fication — f4e4d — m — trench — system, — the
maximum — trench — width — ased — m — the
calculations shall be 36 inches, even
though the actual trench width may be
con s tructed larg e r. — Trenches shall be
not less than eight feet on centers. — The
s tate or local agency may permit the
u s e of a bed s y s tem in lieu of a trench
system for the nitrification field when it
ha s been det e rmined that the trench
system — is — impractical — ©f — impossible
because of topography or space limita

tions. In such ca s e s , the amount of

square feet — of area — needed — s hall — be
increa s ed — by — §0 — percent — evef — what
would be required for a trench system;
or in lieu of the added area, the amount
of gravel or s tone under the drain lines
shall be increa s ed to a depth of not less
than 12 inche s . — The extra area is need
cd to compensate for the loss of trench
s idewall area in the bed systems. — Drain
lines shall be at lea s t 1 8 inches from the

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December 15, 1993

1770

PROPOSED RULES

side of the bod and shall be not less

than threo foot on centers:

fA-) — Sites classified as suitable may receiv e

application of septic tank effluents up

te — 1.5 gallons per square foot per

<-B) — Sites classified as provisionally suit
able may receive septic tank effluents
up to 0.75 gallons per s quare foot per
davi — except — that — where — percolation
rates exceed 60 minutes per inch, the
application rate shall not exceed 0.5
gallons per square foot per day.
{€) — Sites classified as un s uitable shall not
be used for soil absorption di s po s al

systems. unle ss engineering.

hydrogeologic. and se+1 s tudies

indicate to the state or local agency
that a suitable alternative to a septie
tank system can rea s onably be cxpeet
ed to function s atisfactorily.

f?) Other — Applicabl e — Factors — Involving

Accepted Public Health Principles. The
site evaluation should include consider
ation of any other applicable factors
involving accepted public health princi
pie s , such a s :

{A} the proximity of a large capacity water

supply — well. — the — cone — of influenoe — ef
which would dictate a larger s eparation
distance than the minimum di s tance s pcei
fied in Regulation .0301(f) of this Seetion:

(B) the potential public health hazard of
possible failures of soil absorption
systems involving large quantities of
sewage, which would dictate larger
separation distances than the mini-
mums specified in Regulation .0301(f)
of this Section;

(C) the potential public health hazard of
possible massive failures of soil ab-
sorption systems proposed to serve
large numbers of residences, as in
residential subdivisions or mobile
home parks;

(D) other circumstances peculiar to indi-
vidual situations.

Statutory Authority G.S. 130A-160; 143-215.1.

.0303 INTERPRETATION AND

TECHNICAL ASSISTANCE

The provi s ion s of thi s technical guide shall be
interpreted, as applicable, in accordance with the
recognized principles and practices of soil science.
State ageneies will — provide technical assistance.
Local agencies s hall obtain technical assistance
from soil s cientist personnel, and local soil survey
information.

Statutory Authority G.S. 130A-160; 143-215.1.

.0304 TABLE NO. I

The following e s timates of sewage quantities are the minimums required for use in determining whether
or not a sewage disposal sy s tem ha s a de s ign capacity of above 3,000 gallons and for determining the flow
rate for establishments other than residences. — The figures include volume neces s ary to handle the sewage
flow and provide sludge storage, and may differ from e s timated sewage flows u s ed in the de s ign of
municipal or community sewerage s y s tem s :

Type of E s tabli s hments

Daily F lew
For Des tgfl

Airports, also RR Stations, bus terminals,
(not including food service facilitie s )

— § — gal/passenger
400 — gal/chair

Barber Shop s

Beauty Shops —
Bowling Alleys

455 — gal/booth or bowl

-50 — gal/lane

Camps

Construction or work camps

-50 — gal/person
-50 — gal/person

Summer camps

Camp ground s
Churches

450 — gal/campsite
— 5 — gab member

Country Clubs Resident members

Non re s ident member s

75 gal/t

/per s on
-30 — gal/person

1771

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December 15, 1993

PROPOSED RULES

Day Care Facilities

Factories (exclusive of indu s trial

45 — gal/person

wastes) per s hift

— 35 — gal/person
300 gal/bed

Hospitals

Laundries (self service)
Motels/Hotels

500 — gal/maehinc
— 75 — gal/room

With cooking facilitie s in room

Re s ort

Office s per shift

Nursing/Rest Homes With laundry

435 — gal/room
-39© — gal/room

—35 — gal /person
150 gal/bed

Without laundry

Residential Care Facilities

75 gal/bed

-35 — gal/per s on

Restaurants

-4© — gal/scat

Schools: — Day School s

45 — gal/person

Note: — Use 20 gal/person if aerobic
treatment i s propo s ed

Boarding School s
Day Workers

Service Station s

-75 — gal/person
-35 — gal/person

-35© — gal/water closet

Stores

Note: if food service is included,
add 4 gal/scat

mai

25© — gal/water closet
or urinal

Swimming Pools and Bathhouses
Theaters Auditoriums

40 — gal/person

-% — gal/ s eat

Drive In

-5 — gal/car space

Travel Trailer Parks

45© — gal/space

Statutory Authority G.S. 130A-160; 143-215.1.

.0305 TABLE NO. II

Possible modifications of initial cla s sification — (This tabic doe s not include all possible combinations, but
include s tho s e which could result in up grading the initial classification.):

Initial

Modify m g -
— Factors —

Final

Criteria

Cla ss ification

Classification s

1 . Topography

Unsuitable

Soil Characteristics

Provisionally
Suitable

2. Soil Characteristics
iet) — Texture

Unsuitable

Suitable or Provis

— ionally Suitable,
and Sufficient Area

Available

Soil Structur

Ml structure
Provisionally
Suitable, Soil

Provisionally
Suitable

fb) — Structure

Un s uitable

Depth, Restrictive
— Horizon and

Drainage Suitable
None

— Unsuitable
Provisionally
Suitable

te) — Depth

fd) — Re s trictive

Un s uitable

Unsuitable

U s e of Shallow

Trench Use of

— Mount System
Restrictive Hori

Suitable

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1772

PROPOSED RULES

Horizon

fe) — Drainage

Unsuitable

zon Close to Sur

faee: Underlying

Soil Strata Suitable;

Water Table One Foot

or More Below Bottom

of Treneh

Lower Ground

Provi s ionally

Water Table to

Suitable

3. Ground Water

Un s uitab l e

at Lea s t One Foot

Below Bottom of

Treneh

Lower Ground

Provisionally

Elevation

Water Table to

Suitable

4 . Depth to

Un s uitable

Qt Lea s t One Foot

Below Bottom of

Treneh

Re s trictive

Provisionally
Suitable

Impervious
Strata

Horizon Close to

5. Percolation

Un s uitable

Surface; Underlying

Soil Strata Suitable;

Water Table One Foot

or More Below Bottom

of Trench

Soil Structure

Provisionally

fet-

(60 120 min/in)

and Texture

Suitable

Suitable or

Provisionally
Suitable

Statutory Authority G.S. 130A-160; 143-215.1.

.0306 APPLICABILITY: VIOLATIONS

For applicability of rules and — regulation s for
ground ab s orption s y s tems of 3,000 gallons or less
design capacity, see regulation of the Commission
for Health Services. — Any violations of the rules
and regulation s of thi s Section s hall be s ubject to
the s anctions provided in North Carolina General
Statutes 1 4 3 215.6.

Statutory Authority G. S.
143-215.6.

130A-160; 143-215.1;

lSotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Wildlife Re-
sources Commission intends to amend rule cited as
ISA NCAC 10B .0115.

1 he proposed effective date of this action is
March 1. 1994.

1 he public hearing will be conducted at 7:00
p.m. on January 10, 1 994 at the Buncombe Countv
Courthouse, 60 Court Plaza, Asheville, NC 28801.

ixeason for Proposed Action: - To establish a
prohibition against shining lights in Buncombe
County.

K^omment Procedures: Interested persons may-
present their views either orally or in writing at
the hearing. In addition, the record of hearing
will be open for receipt of written comments from
December 15. 1993 to January 14, 1994. Such
written comments must be delivered or mailed to
the N.C Wildlife Resources Commission, 512 N.
Salisbury Street. Raleigh, NC 27604-1 1 88.

CHAPTER 10 - WILDLIFE
RESOURCES COMMISSION

SUBCHAPTER 10B - HUNTING
AND TRAPPLNG

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PROPOSED RULES

SECTION .0100 - GENERAL
REGULATIONS

.0115 SHINING LIGHTS IN DEER AREAS

(a) It having been found upon sufficient evi-
dence that certain areas frequented by deer are
subject to substantial unlawful night deer hunting,
or that residents in such areas have been greatly
inconvenienced by persons shining lights on deer,
or both, the shining of lights on deer in such areas
is limited by Paragraphs (b) and (c) of this Rule,
subject to the exceptions contained in Paragraph
(d) of this Rule.

(b) No person shall, between the hours of 1 1 :00
p.m. and one-half hour before sunrise, intentional-
ly shine a light upon a deer or intentionally sweep
a light in search of deer in the indicated portions
of the following counties:

(1) Beaufort — entire county;

(2) Bladen — entire county;

(3) Brunswick -- entire county;

(4) Camden — entire county;

(5) Chowan -- entire county,

(6) Currituck -- entire county;

(7) Duplin — entire county;

(8) Franklin -- entire county;

(9) Gates -- entire county;

(10) Greene — entire county;

(11) Hertford — entire county;

(12) Hoke -- entire county;

(13) Hyde — entire county, except that part
of the county described in Paragraph (c)
of this Rule;

(14) Jones — entire county;

(15) Lenoir -- entire county;

(16) Martin -- entire county;

(17) Nash -- entire county;

(18) Pamlico — entire county;

(19) Pasquotank — entire county;

(20) Pender — entire county;

(21) Perquimans -- entire county;

(22) Pitt — entire county;

(23) Richmond -- entire county;

(24) Sampson — entire county;

(25) Tyrrell — entire county;

(26) Vance -- entire county;

(27) Wake -- entire county;

(28) Warren — entire county;

(29) Washington — entire county;

(30) Wayne -- entire county.

(c) No person shall, between the hours of
one-half hour after sunset and one-half hour before
sunrise, intentionally shine a light upon a deer or
intentionally sweep a light in search of deer in the
indicated portions of the following counties:

(1) Alamance — entire county;

(2) Alexander — entire county;

(3) Alleghany — entire county;

(4) Anson -- entire county;

(5) Ashe -- entire county;

(6) Avery — that portion south and east of
Highway 22 1 ;

(7) Buncombe County — entire county;

(8) (74-Burke -- entire county;

(9) (84 Cabarrus — entire county;

(10) (9) Caswell — entire county;

(1 1) (40) Catawba — entire county;

(12) (444 Chatham -- entire county;

(13) (43) Clay — entire county;

(14) (44) Cleveland -- entire county;

(15) (44) Cumberland — entire county;

(16) fl-5) Davidson — entire county;

(17) (46) Davie — entire county;

(18) (44) Durham — entire county;

(19) (48) Edgecombe — entire county;

(20) (49) Forsyth County — entire county;

(21) (20) Gaston — entire county;

(22) (344 Granville — entire county;

(23) (2-3) Guilford — entire county;

(24) (34) Halifax - entire county;

(25) (34) Harnett — entire county;

(26) (35) Henderson — entire county;

(27) (36) Hyde — that part bounded on the
north by a line running parallel with
and 1000 yards in a northward direction
from that part of SR 1304 that leads
from Hodges' Fork to Rose Bay, on the
east by the Mattamuskeet National
Wildlife Refuge boundary, on the
southeast by US 264, and on the west
and southwest by a line running parallel
with and 1000 yards in a west or
southwest direction from the centerline
of SR 1304;

(28) (37) Iredell — entire county;

(29) (38) Johnston — entire county;

(30) (39) Lee -- entire county;

(31) (40) Lincoln -- entire county;

(32) (444 Macon -- entire county;

(33) (43) McDowell — entire county;

(34) (434 Mecklenburg — entire county;

(35) (44) Mitchell - entire county;

(36) (45) Montgomery -- entire county;

(37) (46) Northampton — entire county;

(38) (37) Orange County — entire county;

(39) (48) Person — entire county;

(40) (49) Polk - entire county;

(41) (40) Randolph — entire county;

(42) (444 Robeson County — entire county;

(43) (43) Rockingham — entire county;

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1774

PROPOSED RILES

(44) (4^) Rowan -- entire county;

(45) (44) Rutherford -- entire county;

(46) (45) Stanly — entire county;

(47) {46) Stokes — entire county;

(48) (47) Surry — entire county;

(49) (48) Transylvania — entire county;

(50) (49) Union -- entire county;

(51) (50) Watauga — entire county;

(52) (54-) Yancey -- entire county.

(d) Paragraphs (b) and (c) of this Rule shall not
be construed to prevent:

(1) the lawful hunting of raccoon or
opossum during open season with
artificial lights designed or commonly
used in taking raccoon and opossum at
night;

(2) the necessary shining of lights by
landholders on their own lands;

(3) the shining of lights necessary to nor-
mal travel by motor vehicles on roads
or highways; or

(4) the use of lights by campers and others
who are legitimately in such areas for
other reasons and who are not attempt-
ing to attract or to immobilize deer by
the use of lights.

Statutory Authority G.S. 113-134; 113-291.1; S.L.
1981. Ch. 410; S.L. 1981 (Second Session 1982),
Ch. 1180.

IS otice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Wildlife Re-
sources Commission intends to amend rule cited as
15A NCAC IOC .0407.

1 he proposed effective date of this action is June
1. 1994.

1 he public hearing will be conducted at 10:00
a.m. on January 4, 1994 at the Archdale Building,
3rd Floor Conference Room, 512 N. Salisbury
Street, Raleigh, NC 27604-1 188.

MXeason for Proposed Action: To close the season
on blackftsh (bowfinj in certain rivers of the State.

K^omment Procedures: Interested persons may
present their views either orally or in writing at
the hearing. In addition, the record of hearing

will be open for receipt of written comments from
December 15. 1993 to January 14, 1994. Such
written comments must be delivered or mailed to
the N. C Wildlife Resources Commission, 512 N.
Salisbury Street, Raleigh, NC 27604-1 188.

tLditor's Note: Tliis Rule was filed as a tempo-
rary amendment effective December 1, 1993 for
a period of 180 days or until the permanent rule
becomes effective, whichever is sooner.

SUBCHAPTER IOC - INLAND FISHING
REGULATIONS

SECTION .0400 - NONGAME
FISH

.0407 PERMITTED SPECIAL DEVICES
AND OPEN SEASONS

Except in designated public mountain trout
waters, and in impounded waters located on the
Sandhills Game Land, there is a year-round open
season for the licensed taking of nongame fishes
by bow and arrow. Seasons and waters in which
the use of other special devices is authorized are
indicated by counties below:

(1) Alamance:

(a) July 1 to August 31 with seines in
Alamance Creek below NC 49 bridge
and Haw River;

(b) July 1 to June 30 with gigs in all public
waters;

(2) Alexander: July 1 to June 30 with traps
and gigs in all public waters; and with
spear guns in Lake Hickory and Lookout
Shoals Reservoir;

(3) Alleghany: July 1 to June 30 with gigs
in New River, except designated public
mountain trout waters;

(4) Anson:

(a) July 1 to June 30 with traps and gigs in
all public waters;

(b) December 1 to June 5 with dip and bow
nets in Pee Dee River below Blewett
Falls Dam, and with gill nets in Pee
Dee River below the lower end of Goat
Island;

(c) July 1 to August 31 with seines in all
running public waters, except Pee Dee
River from Blewett Falls downstream to
the Seaboard Coast Line Railroad tres-
tle;

(5) Ashe: July 1 to June 30 with gigs in
New River (both forks), except designat-

7775

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NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

(7)
(a)

(b)

ed public mountain trout waters;
(6) Beaufort:

(a) July 1 to June 30 with traps in the
Pungo River, and in the Tar and
Pamlico Rivers above Norfolk and
Southern Railroad bridge; and with gigs
in all inland public waters;

(b) December 1 to June 5 with dip and bow
nets in all inland public waters; with
drift gill nets in Tar River upstream
from the Norfolk and Southern Railroad
bridge at Washington to the Pitt County
line; and with gill nets in all other
inland public waters, except Blounts
Creek, Chocowinity Bay, Durham
Creek, Mixon Creek and Nevil Creek
and their tributaries.

Bertie:
July 1 to June 30 with traps in the
Broad Creek (tributary of Roanoke);
December 1 to June 5 with dip and bow
nets in all inland public waters,
excluding public lakes, ponds, and
other impounded waters; and with gill
nets in all inland public waters;

(8) Bladen:

(a) December 1 to March 1 with gill nets
in all inland public waters, except
Jones, Salters, White, Singletary and
Bay tree (Black) Lakes;

(b) December 1 to May 1 with gill nets in
Black River;

(9) Brunswick:

(a) December 1 to March 1 with gill nets
in all inland public waterSi except
Waccamaw River and its tributaries ;

(b) December 1 to May 1 with dip, bow,
and gill nets in Alligator Creek, Hoods
Creek, Indian Creek, Orton Creek
below Orton Pond, Rices Creek,
Sturgeon Creek and Town Creek;

Buncombe: July 1 to June 30 with gigs

in all public waters, except designated

public mountain trout waters;

Burke:
July 1 to August 31 with seines in all
running public waters, except Johns
River and designated public mountain
trout waters;
(b) July 1 to June 30 with traps, gigs, and
spear guns in all public waters, except
designated public mountain trout waters
and Lake James;

(10)

(ID
(a)

(12)
(a)

(b)

(13)

(14)

(a)

(b)

(15)

(16)

(a)

(b)

(c)

(17)
(a)

(b)

(18)
(a)

(b)
(c)

(19)

(20)
(a)

Cabarrus:
July 1 to August 31 with seines in all
running public waters,
July 1 to June 30 with traps and gigs in
all public waters;
Caldwell: July 1 to June 30 with traps,
gigs, and spear guns in all public waters,
except designated public mountain trout
waters;
Camden:
July 1 to June 30 with traps in all
inland public waters;
December 1 to June 5 with dip and bow
nets in all inland public waters,
excluding public lakes, ponds, and
other impounded waters; and with gill
nets in all inland public waters;
Carteret: December 1 to June 5 with
dip, bow, and gill nets in all inland
public waters except South River and the
tributaries of the White Oak River;
Caswell:
July 1 to June 30 with gigs in all public
waters;

July 1 to August 31 with seines in all
running public waters, except Moons
Creek;

July 1 to June 30 with traps in Hyco
Reservoir;
Catawba:
July 1 to August 31 with seines in all
running public waters, except Catawba
River below Lookout Dam;
July 1 to June 30 with traps, spear
guns, and gigs in all public waters;
Chatham:
December 1 to April 15 with dip and
gill nets in the Cape Fear River, Deep
River, Haw River and Rocky River
(local law);

July 1 to August 31 with seines in the
Cape Fear River, and Haw River;
July 1 to June 30 with traps in Deep
River; and with gigs in all public
waters;
Cherokee: July 1 to June 30 with gigs in
all public waters, except designated
public mountain trout waters;
Chowan:
December 1 to June 5 with dip and bow
nets in all inland public waters,
excluding public lakes, ponds, and
other impounded waters; and with gill
nets in all inland public waters, except
Bennetts Mill Pond and Dillard Pond;

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1776

PROPOSED RULES

(hi

(21)

(22)
(a)

ib,

(23)
(a)

(bJ

(cb)

(24)
(a)

(b)

(25)

(26)
(a)

(b)

(27)
(a)

(b,

July 1 to June 30 with traps in all
inland public waters, excluding public
lakes, ponds, and other impounded
waters ;

Clay: July 1 to June 30 with gigs in all

public waters, except designated public

mountain trout waters;

Cleveland:
July 1 to August 31 with seines in all
running public waters;
July 1 to June 30 with gigs, traps and
spear guns in all public waters;

Columbus:
December 1 to March 1 with gill nets
and gigs in all inland public waters,
except Lake Waccamaw and its inlets
tributaries and Waccamaw River and its
tributaries ;

December 1 to March 1 with gigs m all
inland public waters, except Lake
Waccamaw and its tributaries;

(28)

(a)

December 1 to June 5 with dip, bow.
and gill nets in Livingston Creek;

Craven:
July 1 to June 30 with traps in the main
run of the Trent and Neuse Rivers;
December 1 to June 5 with dip, bow,
and gill nets in all inland public waters,
except Pitch Kettle, Grindle, Slocum,
Spring and Hancock Creeks and their
tributaries; with dip and bow nets in
Slocum Creek above the US 70 bridge;
and with seines in the Neuse River;

Cumberland: December 1 to March 1

with gill nets in all inland public waters;

Currituck:
July 1 to June 30 with traps in Tulls
Creek and Northwest River;
December 1 to June 5 with dip and bow
nets in all inland public waters,
excluding public lakes, ponds, and
other impounded waters; and with gill
nets in Northwest River and Tulls
Creek;

Dare:
July 1 to June 30 with traps in Mashoes
Creek, Milltail Creek, East Lake and
South Lake;

December 1 to June 5 with dip and bow
nets in all inland public waters,
excluding public lakes, ponds, and
other impounded waters; and with gill
nets in Martin Point Creek;

Davidson:
July 1 to August 31 with seines in all

running public waters,
(b) July 1 to June 30 with gigs in all public
waters, and with traps in all public
waters except Leonard's Creek,
Abbott's Creek below Lake
Thom-A-Lex dam, and the Abbott's
Creek arm of High Rock Lake
upstream from the NC 8 bridge;

(29) Davie:

(a) July 1 to June 30 with traps and gigs in
all public waters;

(b) July 1 to August 31 for taking only
carp and suckers with seines in
Dutchmans Creek from US 601 to
Yadkin River and in Hunting Creek
from SR 1338 to South Yadkin River;

(30) Duplin:

(a) December 1 to March 1 with gill nets
in Baysden Pond and in the Northeast
Cape Fear River, including old
channels from a point one mile above
SR 1700 (Serecta) Bridge downstream
to the county line;

(b) December 1 to June 5 with dip, bow,
and gill nets and seines in the main run
of the Northeast Cape Fear River
downstream from a point one mile
above Serecta Bridge;

(31) Durham:

(a) July 1 to August 31 with seines in
Neuse River.

(b) July 1 to June 30 with gigs in all public
waters;

(32) Edgecombe:

(a) December 1 to March 15 with gill nets
in Noble Mill Pond and Wiggins Lake;

(b) December 1 to June 5 with dip and bow
nets in all public waters; and with drift
gill nets in Tar River below the bridge
at Old Sparta to the Pitt County line;

(33) Forsyth: July 1 to June 30 with traps
and gigs in all public waters, except traps
may not be used in Belews Creek
Reservoir;

(34) Franklin:

(a) December 1 to March 1 with gill nets
in Clifton Pond, Parrish Pond, Jackson
Pond and Lake Royale;

(b) July 1 to August 31 with seines in Tar
River;

(c) July 1 to June 30 with gigs in all public
waters, except .Parrish. Laurel Mill.
Jackson, Clifton, Moore's and Perry's
Ponds, and in the Franklinton City
ponds;

7777

8:18

NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

(35) Gaston:

(a) July 1 to August 31 with seines in all
running public waters;

(b) July 1 to June 30 with gigs, traps and
spear guns in all public waters;

(36) Gates: December 1 to June 5 with dip
and bow nets in all inland public waters,
excluding public lakes, ponds, and other
impounded waters; and with gill nets in
all inland public waters, except Williams
(Merchants Mill) Pond;

(37) Graham: July 1 to June 30 with gigs in
all public waters, except designated
public mountain trout waters;

(38) Granville:

(a) July 1 to June 30 with gigs in all public
waters, except Kerr Reservoir;

(b) July 1 to August 31 with seines in the
Neuse River and the Tar River below
US 158 bridge;

(d) July 1 to June 30 with cast nets in all
public waters;

(39) Greene: December 1 to June 5 with dip,
bow, and gill nets and reels in
Contentnea Creek;

(40) Guilford:

(a) July 1 to August 31 with seines in Haw
River, Deep River below Jamestown
Dam, and Reedy Fork Creek below US
29 bridge;

(b) July 1 to June 30 with gigs in all public
waters;

(41) Halifax:

(a) December 1 to March 1 with gill nets
in White's Mill Pond;

(b) December 1 to June 5 with dip and bow
nets in Beech Swamp, Clarks Canal,
Conoconnara Swamp, Fishing Creek
below the Fishing Creek Mill Dam,
Kehukee Swamp, Looking Glass Gut,
Quankey Creek, and White's Mill Pond
Run;

(42) Harnett:

(a) December 1 to March 1 with gill nets
in all inland public waters;

(b) January 1 to May 31 with gigs in Cape
Fear River and tributaries;

(43) Haywood: July 1 to June 30 with gigs in

(44)

(45)
(a)

(b)

(46)

(47)

(a)
(b)

(48)

(49)

(50)
(a)

(b)

(51)
(a)

(b)

(O
(d)

all public waters, except Lake Junaluska

and designated public mountain trout

waters ;

Henderson: July 1 to June 30 with gigs

in all public waters, except designated

public mountain trout waters;

Hertford:
July 1 to June 30 with traps in
Wiccacon Creek;

December 1 to June 5 with dip and bow
nets in all inland public waters,
excluding public lakes, ponds, and
other impounded waters; and with gill
nets in all inland public waters, except
mill ponds;

Hoke: December 1 to March 1 with gill

nets in all inland public waters;

Hyde:
July 1 to June 30 with traps in all
inland waters;

December 1 to June 5 with dip and bow
nets in all inland public waters,
excluding public lakes, ponds, and
other impounded waters; and with gill
nets in Pungo River and tributaries
upstream from US 264 bridge, Scranton
Creek, and Long Shoal River and
tributaries;

Iredell: July 1 to June 30 with traps and

gigs in all public waters; and with spear

guns in Lookout Shoals Reservoir and

Lake Norman;

Jackson: July 1 to June 30 with gigs in

all public waters, except designated

public mountain trout waters;

Johnston:
December 1 to March 1 with gill nets
in Cattails Lake, Holts Lake, Holts
Pond, and Wendell Lake;
December 1 to June 5 with dip and bow
nets in Black Creek, Little River,
Middle Creek, Mill Creek, Neuse
River, and Swift Creek;

Jones:
July 1 to June 30 with traps in the
Trent River below US 17 bridge and
White Oak River below US 1 7 bridge;
December 1 to June 5 with dip, bow,
and gill nets in all inland public waters,
except the White Oak River and its
tributaries;

December 1 to June 5 with dip and bow
nets in the main run of the White Oak
River;
March 1 to April 30 with gill nets in

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1778

PROPOSED RULES

the main run of the White Oak Riser;

(52) Lee:

(a) December 1 to April 15 with dip and
gill nets (local law) in Cape Fear River
and Deep River: and with gill nets in
Morris Pond;

(b) July 1 to August 31 with seines in Cape
Fear River;

(53) Lenoir:

(a) July 1 to June 30 with traps in Neuse
River below US 70 bridge at Kinston;

(b) December 1 to June 5 with dip. bow,
and gill nets in Neuse River and
Contentnea Creek upstream from NC
118 bridge at Grifton; and with seines
in Neuse River;

(54) Lincoln:

(a) July 1 to August 31 with seines in all
running public waters:

(b) July 1 to June 30 with traps, gigs and
spear guns in all public waters;

(55) McDowell:

(a) July 1 to August 3
running public
designated public
waters:

(b) July 1 to June 30 with traps, gigs, and
spear guns in all public waters, except
designated public mountain trout waters
and Lake James;

(56) Macon: July 1 to June 30 with gigs in
all public waters, except designated
public mountain trout waters;

(57) Madison: July 1 to June 30 with gigs in
all public waters, except designated
public mountain trout waters;

(58) Martin: December 1 to June 5 with dip
and bow nets in all inland public waters,
excluding public lakes, ponds, and other
impounded waters; and with gill nets in
all inland public waters;

(59) Mecklenburg:

(a) July 1 to August 31 with seines in all
running public waters;

(b) July 1 to June 30 with traps, gigs and
spear guns in all public waters;

(60) Montgomery:

(a) July 1 to August 3 1 with seines in all
running public waters, except that part
of the Pee Dee River between the Lake
Tillery dam at Hydro and the mouth of
Rocky River;

with seines in all

waters, except

mountain trout

(b) July 1 to June 30 with traps and gigs in
all public waters;

(61) Moore:

(a) December 1 to April 15 with gill nets
in Deep River and all tributaries;

(b) July 1 to August 31 with seines in all
running public waters except in Deep
River;

(c) July 1 to June 30 with gigs in all public
waters, except lakes located on the
Sandhills Game Land; and with traps in
Deep River and its tributaries;

(62) Nash:

(a) December 1 to March 1 with gill nets
in Boddies Pond and Camp Charles
Lake;

(b) July 1 to June 30 with gigs in all public
waters, except Tar River;

(c) December 1 to June 5 with dip and bow
nets in the Tar River below Harris"
Landing and Fishing Creek below the
Fishing Creek Mill Dam;

New Hanover: December 1 to June 5
with dip, bow, and gill nets in all inland
public waters, except Sutton (Catfish)
Lake;

Northampton:
July 1 to June 30 with gigs in all public
waters, except Gaston and Roanoke
Rapids Reservoirs and the Roanoke
River above the US 301 bridge;
December 1 to June 5 with dip and bow-
nets in Occoneechee Creek, Old River
Landing Gut; and with dip. bow and
gill nets in Vaughans Creek below
Watsons Mill;

July 1 to June 30 with dip and cast nets
in Gaston Reservoir and Roanoke
Rapids Reservoir;
Onslow:
July 1 to June 30 with traps in White
Oak River below US 17 bridge:

(b) August 1 to March 31 with eel pots in
the main run of New River between US
17 bridge and the mouth of Hawkins
Creek;

(d) December 1 to June 5 with dip. bow.
and gill nets in the main run of New
River; and with dip and bow nets in the
main run of the White Oak River;

(e) March 1 to April 30 with gill nets in
the main run of the White Oak River;
and with dip. bow and gill nets in

(63)

(64)

(a)

(b)

(c)

(65)

(a)

1779

8:18

NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

Grant's Creek;

(66) Orange:

(a) July 1 to August 31 with seines in Haw
River,

(b) July 1 to June 30 with gigs in all public
waters;

(67) Pamlico: December 1 to June 5 with
dip, bow and gill nets in all inland public
waters;

(68) Pasquotank:

(a) July 1 to June 30 with traps in all
inland waters;

(b) December 1 to June 5 with dip and bow
nets in all inland public waters,
excluding public lakes, ponds, and
other impounded waters; and with gill
nets in all inland public waters;

(69) Pender:

(a) December 1 to June 5 with dip, bow,
and gill nets in the Northeast Cape Fear
River and Long Creek; with dip and
bow nets in Black River; and with
seines in the main run of Northeast
Cape Fear River;

(b) December 1 to May 1 with gill nets in
Black River; and with dip. bow, and
gill nets in Moore's Creek
approximately one mile upstream to
New Moon Fishing Camp;

Perquimans:
July 1 to June 30 with traps in all
inland waters;

December 1 to June 5 with dip and bow
nets in all inland public waters,
excluding public lakes, ponds, and
other impounded waters; and with gill
nets in all inland public waters;

Person:
July 1 to August 3 1 with seines in Hyco
Creek and Mayo Creek;
July 1 to June 30 with gigs in all public
waters.

Pitt:
July 1 to June 30 with traps in Neuse
River and in Tar River below the
mouth of Hardee Creek east of
Greenville;

December 1 to June 5 with dip, bow
and drift gill nets and with seines in Tar
River; and with dip, bow and gill nets
in all other inland public waters, except
Grindle Creek, and Contentnea Creek
between NC 1 1 8 bridge at Grifton and
the Neuse River;
(73) Polk: July 1 to June 30 with gigs in all

(70)
(a)

(b)

(71)
(a)

(b)

(72)
(a)

(b)

(74)
(a)

(b)

(c)

(75)
(a)

(b)

(76)

(77)
(a)

(b)

(78)
(a)

(b)

(79)
(a)

(b)

(80)
(a)

(b)

public waters, except designated public

mountain trout waters;

Randolph:
December 1 to March 1 with gill nets
in Deep River and Uwharrie River;
July 1 to August 3 1 with seines in Deep
River above the Coleridge Dam and
Uwharrie River;

July 1 to June 30 with gigs in all public
waters;

Richmond:
July 1 to August 31 with seines in all
running public waters, except Pee Dee
River from Blewett Falls downstream to
the Seaboard Coast Line Railroad
trestle;

July 1 to June 30 with traps and gigs in
all public waters, except lakes located
on the Sandhills Game Land;
December 1 to June 5 with dip and bow
nets in Pee Dee River below Blewett
Falls Dam, and with gill nets in Pee
Dee River below the mouth of
Cartledge Creek;

Robeson: December 1 to March 1 with

gill nets and gigs in all inland public

waters;

Rockingham:
July 1 to August 31 with seines in Dan
River and Haw River;
July 1 to June 30 with traps in Dan
River; and with gigs in all public
waters;

Rowan:
July 1 to August 31 with seines in all
running public waters,
July 1 to June 30 with traps and gigs in
all public waters;

Rutherford:
July 1 to August 31 with seines in all
running public waters, except
designated public mountain trout
waters;

July 1 to June 30 with traps, gigs, and
spear guns in all public waters, except
designated public mountain trout
waters ;

Sampson:
December 1 to March 1 with gill nets
in all inland public waters;
December 1 to May 1 with gill nets in
Big Coharie Creek, Black River, and
Six Runs Creek;

May 2 to June 5 with gill nets of no
less than five and one-half inch stretch

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1780

PROPOSED RULES

(81)

(82)
(a)

measure in Big Coharie Creek, Black (c)

River, and Six Runs Creek;
(d) December 1 to June 5 with dip and bow

nets in Big Coharie Creek. Black River.

and Six Runs Creek; (d)

Scotland: December 1 to March 1 with
gill nets in all inland public waters, (e)

except lakes located on the Sandhills
Game Land; (90)

Stanly: (a)

July 1 to August 31 with seines in all

running public waters, except that part

of the Pee Dee River between the Lake (b)

Tillery dam at Hydro and the mouth of

Rocky River;
(b) July 1 to June 30 with traps and gigs in

all public waters: (91)

(83) Stokes: July 1 to June 30 with traps and (a)
gigs in all public waters, except designat-
ed public mountain trout waters, and

traps mav not be used in Belews Creek

Reservoir; (b)

(84) Surry: July 1 to June 30 with gigs in all
public waters, except designated public
mountain trout waters; and with traps in

the main stem of Yadkin River; (c)

(85) Swain: July 1 to June 30 with gigs in all
public waters, except designated public

mountain trout waters; (d)

(86) Transylvania: July 1 to June 30 with

gigs in all public waters, except designat- (92)

ed public mountain trout waters; (a)

(87) Tyrrell:

(a) July 1 to June 30 with traps in (b)
Scuppernong River, Alligator Creek,

and the drainage canals of Lake Phelps
except Bee Tree Canal within 50 yards
of the Lake Phelps fish ladder;

(b) December 1 to June 5 with dip and bow
nets in all inland public waters, exclud-
ing Lake Phelps. Bes Tree Canal within
50 yards of the Lake Phelps fish ladder,
public lakes, ponds and other impound-
ed waters; and with gill nets in Alliga-
tor Creek;

(88) Union:

(a) July 1 to August 31 with seines in all

running public waters, (94)

(b) July 1 to June 30 with traps and gigs in
all public waters:

(89) Vance:

(a) December 1 to March 1 with gill nets

in Southerlands Pond and Ellis Pond; (95)

(b) July 1 to August 31 with seines in the (a)
Tar River:

(93)

(a)

ib.

July 1 to June 30 with gigs in all public
waters, except Rolands, Faulkners.
Southerlands, and Weldon Ponds, City
Lake, and Kerr Reservoir;
July 1 to June 30 with dip and cast nets
in Kerr Reservoir;

July 1 to June 30 with cast nets in all
public waters;
Wake:
July 1 to June 30 with gigs in all public
waters, except Sunset, Benson. Wheel-
er. Raleigh, and Johnson Lakes:
December 1 to June 5 with dip and bow
nets in the Neuse River below
Milburnie Dam. and Swift Creek below
Lake Benson Dam;
Warren :
July 1 to August 31 with seines in
Fishing Cre«k. Shocco Creek, and
Walker Creek; excluding Duck and
Hammes Mill Ponds;
July 1 to June 30 with gigs in all public
waters, except Duck and Hammes Mill
Ponds, Kerr Reservoir, and Gaston
Reservoir;

July 1 to June 30 with dip and cast nets
in Kerr Reservoir and Gaston Reser-
voir;

July 1 to June 30 with cast nets in all
public waters;
Washington:
July 1 to June 30 with traps in the
drainage canals of Lake Phelps;
December 1 to June 5 with dip and bow
nets in all inland public waters, exclud-
ing Lake Phelps, public lakes, ponds
and other impoundments; and with gill
nets in Conaby Creek:
Wayne:
December 1 to March 1 with gill nets
in Sasser"s Mill Pond and Sleepy Creek
Lake;

December 1 to June 5 with dip and bow
nets in Little River, Mill Creek, and
Neuse River, except from Quaker Neck
Dam downstream to SR 1008 (Tolar)
bridge;
Wilkes: July 1 to June 30 with traps in
Yadkin River below W. Kerr Scott Res-
ervoir; and with gigs and spear guns in
all public waters, except designated
public mountain trout waters;
Wilson:
July 1 to June 30 with gigs in
Contentnea Creek (except Buckhorn

1781

8:18

NORTH CAROLINA REGISTER

December IS, 1993

PROPOSED RULES

Reservoir), including unnamed tributar- (96) Yadkin: July 1 to June 30 with gigs in

ies between Flowers Mill and SR 1163 all public waters, and with traps in the

(Deans) bridge; main stem of Yadkin River,
(b) December 1 to June 5 with dip and bow

nets in Contentnea Creek below US 301 Statutory Authority G.S. 113-134; 113-276;

bridge and in Toisnot Swamp down- 113-292.

stream from the Lake Toisnot Dam;
(c) January 1 to March 1 with gill nets in
Silver Lake;

J\otice is hereby given in accordance with G.S. 150B-21.2 that the EHNR - Commission for Health Services
intends to amend rule cited as 15A NCAC 13A .0016.

1 he proposed effective date of this action is April 1 , 1994.

1 he public hearing will be conducted at 7:00 p.m - 9:00 p. m. on January 1 1 , 1994 at the Greensboro Public
Library, 201 N. Greene Street, Greensboro, NC 27401.

Ixeason for Proposed Action: To adjust the scoring for inspection frequency and duration of commercial
hazardous waste treatment facilities in North Carolina based upon two years of experience in inspecting these
facilities. This change will be more equitable for convnercial facilities as it will better represent inspection
needs.

(comment Procedures: All persons interested in these matters are invited to attend the public hearing.
Written comments may be presented at the public hearing or submitted to Patricia Arms, NC Department of
Environment, Health, and Natural Resources, Division of Solid Waste Management, P.O. Box 27687,
Raleigh, NC 2761 1-7687. All written comments must be received by January 20, 1994. Persons who wish
to speak at the hearing should contact Patricia Arms at (919) 733-4996. Persons who call in advance of the
hearing will be given priority on the speaker's list. Oral presentation lengths may be limited depending on
the number of people that wish to speak at the public hearing. Only persons who have made comments at a
public hearing or who have submitted written comments will be allowed to speak at the Commission meeting.
Comments made at the Commission meeting must either clarify previous conmients or proposed changes from
staff pursuant to comments made during the public hearing process.

IT IS VERY IMPORTANT THAT ALL INTERESTED AND POTENTIALLY AFFECTED PERSONS, GROUPS,
BUSINESSES, ASSOCIATIONS, INSTITUTIONS OR AGENCIES MAKE THEIR VIEWS AND OPINIONS
KNOWN TO THE COMMISSION FOR HEALTH SERVICES THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS, WHETHER THEY SUPPORT OR OPPOSE ANY OR ALL PROVISIONS OF THE
PROPOSED RULES. THE COMMISSION MAY MAKE CHANGES TO THE RULES AT THE COMMISSION
MEETING IF THE CHANGES COMPLY WITH G.S. 150B-21 .2(f).

CHAPTER 13 - SOLID WASTE MANAGEMENT

SUBCHAPTER 13A - HAZARDOUS WASTE MANAGEMENT

0016 SPECIAL PURPOSE COMMERCIAL HAZARDOUS WASTE FACILITY

(a) The Department shall evaluate all commercial hazardous waste facilities to determine a score for each
facility in accordance with Paragraph (c) of this Rule.

(b) A commercial hazardous waste facility (other than an incinerator or a land disposal facility) with a
volume of waste of 20,000 tons or less per year of hazardous waste and having a total score pursuant to

8:18 NORTH CAROLINA REGISTER December 15, 1993 1782

PROPOSED RULES

Paragraph (c) of this Rule of less than 30 33 is designated as a special purpose commercial hazardous waste
facility. These facilities shall be classified as follows:

Total Score
1 - 44 13

+3 14 - 30 22
34-23-39 32

Category
1

2
3

(c) A score for each facility shall be determined by adding the total score for Subparagraphs (c)(1) - (c)(7)
of this Rule and subtracting the score for Subparagraph (c)(8) of this Rule.

( 1 ) A score shall be assigned for smallness of the facility by adding the applicable score for storage
and the applicable score for treatment using Table 1 .

TABLE 1

Smallness of Facility

Constructed Capacity

Score

Storage:
(gallons)

< 10,000
10.000-100,000
> 100.000

2
3

Treatment:
(gallons/
per day)

< 10,000
10,000-100,000
> 100,000

2
3

(2) A score shall be assigned for type of treatment permitted by adding the score for each type of
treatment being performed by the facility using Table 2.

TABLE 2

Type of Treatment Being Performed

Score

Storage Only
Solvent Recovery
Metal Recovery
Energy Recovery
Fuel Blending
Aqueous Treatment
Stabilization
Incineration
Residuals Management
Other Treatment

2
2
2
2
3
2
5
5
2

(3) A score shall be assigned for the nature of hazardous waste by adding the score for acute waste.
if acute waste totals more than 1 .000 pounds, and the score for each other type of hazardous waste
that constitutes ten percent or more of the total hazardous waste handled by the facility, using Table
3. However, if the facility is permitted for storage only and no treatment is performed, the score
for nature of hazardous waste shall be reduced by one-half for each hazardous waste stream stored
only.

TABLE 3

Nature of Hazardous Waste
(from Annual Report)
Corrosive

Score
1

♦

1783

8:18

NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

Ignitable 2

Reactive 2

Toxicity Characteristic 2

Listed Toxic 2

Acute 3

(4) A score shall be assigned for volume of hazardous waste by using the applicable score in Table 4.

TABLE 4

Volume of Waste (Tons from Annual Report) Score

< 2,000 1

2,000-10,000 2

10,000-20,000 3

(5) A score shall be assigned for uniformity, similarity and lack of diversity of waste streams by using
the applicable score in Table 5.

TABLE 5

Uniformity, Similarity, Lack of Diversity of
Waste Streams (EPA Waste Numbers) From

Annual Report Score

<5 1

5-75 2

>75 3

(6) A score shall be assigned for predictability and treatability of site specific waste streams by using
the applicable score in Table 6.

TABLE 6

Predictability and Treatability of Waste Streams Score

Simple Waste Streams and Treatment 1

Complex Waste Streams and Treatment 2
(Incompatibles, highly toxic, or
multicoded waste streams)

(7) A score shall be assigned for compliance history for the past two years by using the highest
applicable score in Table 7.

TABLE 7

Compliance History for Past Two Years Score

Class II Violations 1

Class I Violations 2

Penalties 3

Injunctions 5

(8) A score shall be assigned for reclamation by using the applicable score in Table 8.

8:18 NORTH CAROLINA REGISTER December 15, 1993 1784

PROPOSED RULES

TABLE 8

Reclamation (Credit Given)

Score

Pretreatment for Off-site Reclamation
On-site Reclamation

I
2

(d) The information referred to in Paragraph (c) of this Rule shall be determined based on the facility's
permit, the previous year's annual report, and compliance history. If no annual report was submitted,
quarterly projections of waste volume shall be submitted to the Department by the facility. Each facility may
be re-evaluated at any time new information is received by the Department concerning the factors in Paragraph
(c) of this Rule.

(e) The frequency of inspections at special purpose commercial hazardous waste facilities shall be
determined by the facility's classification as follows:

Category

2
3

Statutory Authority G.S. 130A-295.02(j).

fSotice is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Commission for Health
Services intends to amend rule cited as 15A NCAC
16A .0306.

1 he proposed effective date of this action is April
I. 1994.

1 he public hearing will be conducted at 1:30
p.m. on January 5, 1994 at the Highway Building,
First Floor Auditorium, 1 South Wilmington Street,
Raleigh. NC.

Reason for Proposed Action: To eliminate
Medicare co-payment rules from the Kidney Pro-
gram Rules. At present the Kidney Program
reimburses dialysis centers the approximately 15%
that Medicare does not reimburse for home dialy-
sis. It is felt that this 50-60 thousand a year could
be more appropriately used in other areas of
ESRD care.

Ksomment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to John P.
Barkley, Department of Justice, P.O. Box 629,

Minimum Inspections

2 per month
4 per month
6 per month

Raleigh, NC 27602-0629. All written comments
must be received by January 20. 1994. Persons
who wish to speak at the hearing should contact
John P. Barkley at (919)733-4618. Persons who
call in advance of the hearing will be given
priority on the speaker's list. Oral presentation
lengths may be limited depending on the number of
people that wish to speak at the public hearing.
Only persons who have made comments at a public
hearing or who have submitted written comments
will be allowed to speak at the Commission
meeting. Comtnents made at the Commission
meeting must either clarify previous comments or
proposed changes from staff pursuant to comments
made during the public hearing process.

IT IS VERY IMPORTANT THAT ALL
INTERESTED AND POTENTIALLY AFFECTED
PERSONS, GROUPS, BUSINESSES,
ASSOCIATIONS, INSTITUTIONS OR AGENCIES
MAKE THEIR VIEWS AND OPINIONS KNOWN
TO THE COMMISSION FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS, WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALL
PROVISIONS OF THE PROPOSED RULES. THE
COMMISSION MAY MAKE CHANGES TO THE
RULES AT THE COMMISSION MEETING IF THE
CHANGES COMPLY WITH G.S. 150B-21.2(f).

CHAPTER 16 - ADULT
HEALTH

1785

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NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

SUBCHAPTER 16A - CHRONIC
DISEASE

SECTION .0300 - CHRONIC RENAL
DISEASE CONTROL PROGRAM

.0306 COVERED SERVICES

The kidney program shall provide financial
assistance to eligible patients for the following
covered services:

(1) Center Dialysis.

(a) Chronic maintenance dialysis.

(i) For patients who have no other cover-
age for this service, reimbursement is
limited to one hundred dollars
($100.00), or the Medicaid rate,
whichever is lower, per treatment, not
to exceed 149 treatments per year,
(ii) For patients who have other coverage
for this service, no reimbursement
will be provided.

(b) Home training dialysis.

(i) For patients who have no other cover-
age for this service, reimbursement is
limited to one hundred twenty dollars
($120.00), or the Medicaid rate,
whichever is lower, per treatment, not
to exceed 5 training treatment ses-
sions,
(ii) For eligible patients with no other
third party coverage beyond Medi-
care, the program will reimburse the
facilities fifteen percent of their Medi-
care home training rate, not to exceed
5 training treatment sessions,
(iii) For eligible patients who are not
covered by Medicare and do have
other coverage for this service, reim-
bursement is limited to the extent that
full payment (including all third-party
payments) does not exceed one hun-
dred twenty dollars ($120.00), or the
Medicaid rate, whichever is lower,
per treatment, not to exceed 5 training
sessions.

(2) Home Dialysis^

{ft) Medicare Method I home dialysisv is
for
(i) — Fef patients who have no other cover-
age for this service, reimbursement is
limited to one hundred dollars
($100.00), or the Medicaid rate,
whichever is lower, per treatment, not
to exceed 149 treatments per year.
(ii) — For patients with no other party cov

eragc beyond Medicare, the program
w+H — reimbur s e the facilities fifteen
percent of their Medicare rate per
treatment, not to e xceed — 1 4 9 treat
menta per year.
fiti) — For- — eligible — paticnta — who — afe — net
covered by Medicare an do have other
coverage for this s ervice, reimburse
ment is limited to the extent that full
payment — (including — aH — third party
paymenta) docs not exceed one hun
drcd dollar s ($100.00), or the Medic
aid — fate; — whichever — is — lower, — pef
treatment, — not to exceed — 1 4 9 treat
menta per year.

{fe) Medicare Method II home dialysis.

(t) — Reimbursement to vendors for sup
plie s and equipment shall be fifteen
percent — ef- — the — Medicare approved
claims not to exceed two thousand
seven — hundred — and — fifty — dollars
($2,750) during the fiscal year.
{ii) — Reimbur s ement to vendors is limited
to payment for s ervices provided to
Medicare eligible — patients .

Non Medicare — patients mu s t — be

treated — by — their — respective — dialysis
facilities as though under Method I,
or they will be responsible for their
own financial arrangements.

(3) Inpatient Hospital Dialysis.

(a) For patients who have no other
coverage for this service,
reimbursement is limited to one
hundred dollars ($100.00), or the
Medicaid rate, whichever is lower, per
treatment for those patients hospitalized
due to medical complications, pre- or
post-transplant dialysis, or any other
medical reason.

(b) For patients who have other coverage
for this service, no reimbursement will
be provided.

(4) Pharmaceuticals and Incidental Supplies.

(a) Payments shall be made to patient
selected pharmacies for legend or
non-legend drugs and incidental
supplies related to the ESRD diagnosis
purchased by eligible patients upon
receipt by the kidney program of claims
submitted on DEHNR Form 3058,
Pharmacy Claim. Reimbursement for
legend drugs shall not exceed the
Medicaid rate for those drugs.

(b) Payments made to participating

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1786

PROPOSED RULES

pharmacies for pharmaceuticals and
incidental supplies shall not exceed
three hundred dollars ($300.00) per
eligible patient per fiscal year.

Statutory- Authority G S. 130A-220.

l\otice is herein' given in accordance with G.S.
150B-21. 2 that the EHNR - Commission for Health
Services intends to adopt rules cited as 15A NCAC
16A .1301 - .1305.

1 he proposed effective date of this action is April
1. 1994.

1 he public hearing will he conducted at 1:30
p.m. on January 5, 1994 at the Highway Building,
First Floor Auditorium. 1 South Wilmington Street,
Raleigh, NC.

IXeason for Proposed Action: These rules will
enable the AIDS Care Branch to administer a
Medicaid-reimbursed HIV Case Management
Program.

(comment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to John P.
Barkhy. Department of Justice, P. O. Box 629,
Raleigh, NC 27602-0629. All written comments
must be received by January 20, 1994. Persons
who wish to speak at the hearing should contact
John P. Barkley at (919)733-4618. Persons who
call in advance of the hearing will be given priori-
ty on the speaker's list. Oral presentation lengths
may be limited depending on the number of people
that wish to speak at the public hearing. Only-
persons who have made conmients at a public-
hearing or who have submitted written comments
will be allowed to speak at the Commission meet-
ing. Conunents made at the Conunission meeting
must either clarify prexious conunents or proposed
changes from staff pursuant to comments made
during the public hearing process.

IT IS VERY IMPORTANT THAT ALL INTEREST-
ED AND POTENTIALLY AFFECTED PERSONS,
GROUPS. BUSINESSES, ASSOCIATIONS, INSTI-
TUTIONS OR AGENCIES MAKE THEIR VIEWS

AND OPINIONS KNOWN TO THE COMMISSION
FOR HEALTH SERVICES THROUGH THE PUB-
LIC HEARING AND COMMENT PROCESS,
WHETHER THEY SUPPORT OR OPPOSE ANY
OR ALL PROVISIONS OF THE PROPOSED
RULES. THE COMMISSION MAY MAKE

CHANGES TO THE RULES AT THE
COMMISSION MEETING IF THE CHANGES
COMPLY WITH G.S. 150B-21.2(f).

CHAPTER 16 - ADULT
HEALTH

SUBCHAPTER 16A - CHRONIC
DISEASE

SECTION .1300 - HIV CASE
MANAGEMENT PROGRAM

.1301 PROGRAM ADMINISTRATION

The HIV Case Management Program is adminis-
tered by the AIDS Care Branch, Health Care
Section. Division of Adult Health Promotion.
Department of Environment. Health, and Natural
Resources, P.O. Box 27687, Raleigh, NC 27611-
7687.

Statutory Authority G.S. 130A-223.

.1302 QUALIFIED CASE MANAGERS

(a) Case managers providing HIV case manage-
ment under this Program must meet one of the
following qualifications:

( 1 ) Master level degree in a human service
area such as Social Work. Sociology,
Child Development, Maternal and Child
Health, Counseling, Psychology, or
Nursing:

(2) Bachelor level degree in a human ser-
vice area that includes the aforemen-
tioned disciplines and two years experi-
ence working in human services; or

(3) Licensed Registered Nurse, Nurse
Practitioner, Physician Assistant, or
Certified Substance Abuse Counselor
and two years experience working in
human services.

(b) Persons who meet the following require-

; also serve as case managers in this

Have a high school diploma:
Have two years experience providing
case management services to clients
with HIV disease;
(3) Education and experience providing

ments ma'
program:

ill

1787

8:18

NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

case management services have been
verified by the AIDS Care Branch; and
(4) All their charts are reviewed and signed
by a qualified supervisor.

(c) A person qualified as a case manager under
Paragraph (b) of this Rule may serve as a case
manager for five years from the date of employ-
ment as a case manager in an agency certified to
provide HIV case management or, if the agency js
not certified to provide HIV case management at
the time the person is employed as a case manag-
er, from the date of the agency's certification. A
person must meet the requirements of case manag-
ers as set forth in Paragraph (a) of this Rule to
continue providing HIV case management services
after this five year period.

(d) Case managers in the HIV Case Manage-
ment Program shall attend, at least annually,
training approved by the AIDS Care Branch.
Training must be in relevant areas such as case
management, needs assessment, community re-
source development, and substance abuse issues.

Statutory Authority G.S. 130A-223.

.1303 QUALIFIED SUPERVISORS OF
fflV CASE MANAGEMENT
SERVICES

A qualified supervisor of HIV case management
services under this program must meet one of the
following qualifications:

(1) Has a Master level degree |n a human
service area such as Social Work, Sociol-
ogy, Child Development, Maternal and
Child Health, Counseling, Psychology, or
Nursing and one year experience in case
management; or

(2) Has a Bachelor level degree in a human
service area that includes the aforemen-
tioned disciplines and two years experi-
ence in case management.

Statutory Authority G.S. 130A-223.

.1304 CERTIFICATION OF PROVIDERS

(a) The AIDS Care Branch will approve or deny
applications for certification as a provider of HIV
case management.

(b) The Division of Medical Assistance will
enroll certified providers for reimbursement for
HIV case management services provided to clients
who meet Medicaid eligibility criteria set forth jn
10 NCAC 26B .0124.

that includes provider's specific plans for at least
the following:

(1) Comprehensive assessment of health
care, psychosocial, environmental and
financial needs;

(2) Development of individual care plans
which include goals, services to be
provided, and progress notes;

(3) Assuring that appropriate health care,
social work, and other consultations, as
dictated by client needs, are obtained in
developing the care plan;

(4) Coordination of client services with
other agencies in the community which
provide services to persons with HIV
disease; and

(5) Quality assurance, including the moni-
toring and evaluating of case manage-
ment records.

Applications for certification may be ob_;
by writing to the AIDS Care Branch,

Id}
tained

Division of Adult Health Promotion, Department
of Environment, Health, and Natural Resources,
P.O. Box 27687, Raleigh, NC 27611-7687.

(e) To be certified, a provider must:

(1) Ensure the provision of case manage-
ment services by qualified case manag-
ers as set out in Rule .1302 of this
Section;

(2) Ensure clinical supervision of HIV case
management services by a qualified
supervisor as set out in Rule .1303 of
this Section; and

(3) Be approved by the AIDS Care Branch
as having met all requirements listed in
Paragraph (c) of this Rule.

Statutory Authority G.S. 130A-223.

.1305 MONITORING AND EVALUATION

A provider agency's financial and statistical
records, patient records, and any other pertinent
information may be reviewed by the AIDS Care
Branch as part of the overall monitoring and
evaluation effort.

Statutory Authority G.S. 130A-223.

lVotice is hereby given in accordance with G.S.
150B-21.2that the EHNR - Commission for Health
Services intends to amend rule cited as 15A NCAC
18A .1205.

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1788

PROPOSED RULES

1 he proposed effective date of this action is April
1, 1994.

1 he public hearing will he conducted at 1:30
p.m. on January 5, 1994 at the Highway Building,
First Floor Auditorium. 1 South Wilmington Street ,
Raleigh. NC.

Jxeason for Proposed Action: To reduce and /or
eliminate duplication of sampling of Grade A
pasteurized milk products.

Lsomment Procedures: All persons interested in
these matters are invited to attend the public-
hearing. Written comments may be presented at
the public hearing or submitted to John P.
Barkley. Department of Justice, P. O. Box 629,
Raleigh, NC 27602-0629. All written comments
must be received by January 20, 1994. Persons
who wish to speak at the hearing should contact
John P. Barkley at (919)733-4618. Persons who
call in advance of the hearing will be given
priority on the speaker's list. Oral presentation
lengths may be limited depending on the number of
people that wish to speak at the public hearing.
Only persons who have made continents at a public
hearing or who have submitted written comments
will be allowed to speak at the Commission
meeting. Comments made at the Commission
meeting must either clarify previous comtnents or
proposed changes from staff pursuant to comments
made during the public hearing process.

IT IS VERY IMPORTANT THAT ALL
INTERESTED AND POTENTIALLY AFFECTED
PERSONS, GROUPS, BUSINESSES,
ASSOCIATIONS, INSTITUTIONS OR AGENCIES
MAKE THEIR VIEWS AND OPINIONS KNOWN
TO THE COMMISSION FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS, WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALL
PROVISIONS OF THE PROPOSED RULES. THE
COMMISSION MAY MAKE CHANGES TO THE
RULES AT THE COMMISSION MEETING IF THE
CHANGES COMPLY WITH G.S. 150B-21 .2(f).

CHAPTER 18 - ENVIRONMENTAL
HEALTH

SUBCHAPTER 18A - SANITATION

SECTION .1200 - GRADE A
MILK SANITATION

.1205 PROCEDURE FOR ISSUANCE
OF PERMIT: SAMPLING:
EMBARGO

(a) Milk plants shall be issued a North Carolina
permit by the local health department in the county
in which the plant is located Division . This permit
shall cover the milk plant and plant-owned distrib-
utors. The local health department Division that
issued the permit shall assure that a minimum of
four samples of raw milk for pasteurization shall
be taken and recorded from each milk plant after
receipt of the milk by the plant and prior to pas-
teurization every consecutive six months, and shall
sample Grade "A" pasteurized milk and milk
products a minimum of four times every consecu-
tive six months. Samples shall be collected from
the milk plant or plant-owned distributors.

(b) Independent milk distributors, out-of-state
milk plants and milk distributors, and milk haulers
shall be issued a North Carolina permit by the
local health department in the county in which the
distributor i s located. — The local health departm e nt
that i ss ued the permit shall sample Grade "A"
pa s teurized milk and milk products from a distrib
utor a minimum of four time s every consecutive
s ix month s Division .

(c) A local health department without a milk
plant or independent milk distributor located in its
jurisdiction is authorized, but is not required to
sample Grade "A" pasteurized milk or milk prod-
ucts. The local health department shall maintain a
record of temperature and cleanliness in retail
stores, grocery stores, milk delivery trucks, and
similar establishments to determine compliance
with Sections 2, 4, 9, and 10 of the Milk Ordi-
nance.

(d) Out of s tate milk plants and milk distributor s
are issu e d a North Carolina permit by the local
health department designated by the Divi s ion. — A
local health department is designated only after the
out of state milk plant or milk distributor furni s he s
the Division with information concerning where
milk — is — s-e4d — (citie s , — distributors, — outlets, — retail
stores, or other points of sale), frequency, approxi
mate time of deliverie s , and approximate volume
to be di s tributed in each county of thi s s tate. — The
local health department that issued the permit shall
sample Grade "A" milk and milk products from
out of s tate milk plants and milk distributors a
minimum — of four time s — every — con s ecutive — s+*
months.

(d)fe) Dairy farms are issued a North Carolina

1789

8:18

NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

permit by the agency, cither th e Division^ or a
local health department, which has re s ponsibility
for maintaining records — for the milk — plant or
specified bulk tank unit to which the dairy farm
has been assigned. — Permits issued to new dairy
farms arc issued by the agency, cither the Division
or a local health department, which is responsible
for inspecting the dairy farm. Dairy farms trans-
ferring from one milk plant or bulk tank unit to
another are not issued a new permit, but the dairy
farm records are transferred to the agency, cither
the appropriate Division representative or a local
health department, which is responsible for main-
taining the records for the new milk plant or bulk
tank unit. The agency, either the Division e^-a
local health department, responsible for maintain
ing records for the milk plant or specified bulk
tank unit to which a dairy farm has been as s igned
shall assure that a minimum of four samples of
raw milk for pasteurization are recorded every
consecutive six months.

(f) — Milk haulers are issued a North Carolina
permit by the agency, cither the Division or a local
health department, to which the bulk tank unit is
assigned. — If there is no bulk tonic unit involved,
the permit is issued by the local health department
in the county which receives the milk.

•(g) — The local health department shall provide
information upon reque s t a s to whether the local
health department or the Division of Environmcn
tal — Health — issues the permits for a particular
facility or location.

Statutory Authority G.S. 130A-275.

l\otice is hereby given in accordance with G.S.
1 50B-21 .2 that the EHNR - Commission for Health
Services intends to amend rule cited as 15A NCAC
18A .2610.

1 he proposed effective date of this action is April
1. 1994.

1 he public hearing will be conducted at 1:30
p.m. on January 5, 1994 at the Highway Building,
First Floor Auditorium, 1 South Wilmington Street,
Raleigh, NC.

ixeason for Proposed Action:
Statutory changes.

To comply with

Lsomment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to John P.
Barkley, Department of Justice, P. O. Box 629,
Raleigh, NC 27602-0629. All written comments
must be received by January 20, 1994. Persons
who wish to speak at the hearing should contact
John P. Barkley at (919)733-4618. Persons who
call in advance of the hearing will be given
priority on the speaker's list. Oral presentation
lengths may be limited depending on the number of
people that wish to speak at the public hearing.
Only persons who have made comments at a public
hearing or who have submitted written comments
will be allowed to speak at the Commission
meeting. Comments made at the Commission
meeting must either clarify previous comments or
proposed changes from staff pursuant to convnents
made during the public hearing process.

IT IS VERY IMPORTANT THAT ALL
INTERESTED AND POTENTIALLY AFFECTED
PERSONS, GROUPS, BUSINESSES,
ASSOCIATIONS, INSTITUTIONS OR AGENCIES
MAKE THEIR VIEWS AND OPINIONS KNOWN
TO THE COMMISSION FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS, WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALL
PROVISIONS OF THE PROPOSED RULES. THE
COMMISSION MAY MAKE CHANGES TO THE
RULES AT THE COMMISSION MEETING IF THE
CHANGES COMPLY WITH G.S. 150B-21.2(f).

CHAPTER 18 - ENVIRONMENTAL
HEALTH

SUBCHAPTER 18A - SANITATION

SECTION .2600 - SANITATION

OF RESTAURANTS AND

OTHER FOODHANDLING

ESTABLISHMENTS

.2610 STORAGE: HANDLING:
AND DISPLAY OF FOOD

(a) All unwrapped or unenclosed food and drink
on display shall be protected in such manner that
the direct line from the customer's mouth to the
food shall be intercepted by glass or similar shields
and shall be otherwise protected from public
handling or other contamination, except that
approved hand openings may be permitted on

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1790

PROPOSED RULES

counter fronts. This requires standard counter
protector installations for all cafeteria counters,
salad bars, and similar type service to prevent
contamination by customers' coughing and sneez-
ing.

(b) Customer self-service is permitted only
under the following conditions:

(1) Buffet-style Service. This style of
service is not acceptable unless protec-
tive shields, equivalent to cafeteria
counter protectors, are provided to
intercept contamination; however,
protective shields are not required for
buffet style service which is provided
for a club, organization or private
individual as a planned event and from
which the public is excluded. When
food is served in this manner, the fol-
lowing requirements shall be met:

(A) Potentially hazardous foods shall be
replaced at least hourly;

(B) Food containers shall be arranged
conveniently so customers' clothing
does not come in contact with food;

(D) At the conclusion of the event, food
that has not been consumed, shall be
discarded.

(2) Family-style Service. In establishments
featuring this style of service, patrons
elect to participate in the family
dining-table type of service. Ordinary
serving dishes and utensils are
acceptable.

(c) Foods, except raw vegetables which are to
be cooked, shall be kept under cover when not in
the process of preparation and serving. Meat and
other potentially hazardous foods shall not be
stored on the floor, or in direct contact with
shelves and racks of cold storage boxes, or
permitted to come in contact with dirty clothes,
newspapers, pasteboard, previously-used paper, or
other contaminated surfaces. If open dishes and
pans containing food are stacked, food shall be
protected with wax paper or foil. Food
transported to a restaurant shall not be accepted
unless properly wrapped, covered, or otherwise
protected. Food and drink shall not be served to
the general public in the kitchen. In the case of
"drive-in" restaurants, all food shall be covered or
wrapped before delivery to patrons' vehicles, to
exclude vermin or insects, dust, and other
contamination.

(d) Containers for onions, slaw, mustard, and
other condiments shall have covers and be kept
covered when not in use. Sugar shall be dispensed
with either pour-type dispensers or individual
packages. Waiters and waitresses shall avoid
unnecessary handling of food in the process of
serving.

(e) The establishment shall be kept free of flies,
rodents, roaches, ants, and other vermin. Animals
and fowl shall not be permitted in a restaurant,
provided that seeing eye dogs accompanying blind
persons and service dogs accompanying
handicapped persons shall be exempted. All
supplementary means necessary for the elimination
of flies, such as the installation of fly-repellant
fans, and the routine use of approved insecticides
shall be employed.

(f) Dustless methods of floor cleaning shall be
used and all except emergency floor cleaning shall
be done during those periods when the least
amount of food and drink is exposed, such as after
closing, or between meals.

(g) The offering of unwrapped food samples
which were prepared by, or served by, the
establishment on its premises, shall be maintained
within sight of an employee or agent for the
purposes of observing customer use.

Statutory Authority G.S. 130A-248.

iSotice is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Commission for Health
Services intends to amend rule cited as 15A NCAC
21 H .0314.

1 he proposed effective date of this action is April
1. 1994.

1 he public hearing will he conducted at 1:30
p.m. on January 5, 1994 at the Highway Building.
First Floor Auditorium, 1 South Wilmington Street,
Raleigh, NC.

MXeason for Proposed Action: Since 1987, all
non-white newborns in North Carolina have been
offered screening for sickle cell disease. Wliite
infants were not offered this service because of
their very low risk for the disease, and because
funds were not available at the time to screen all
infants.

1791

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December 15, 1993

PROPOSED RULES

Tfie National Institutes of Health recently published
a consensus conference report recommending
universal newborn screening for sickle cell disease
as the standard care. The report notes the difficul-
ty in identifying "non-white infants", the medical
liability in "missing " an infant when such identifi-
cation is inaccurate, and the efficiencies achieved
(both in hospitals and laboratories) when univer-
sal.

Based on the above rationale, and having identi-
fied the required funds, the Division of Maternal
and Child Health, in collaboration with the N.C.
Council on Sickle Cell Syndrome, proposes to
amend to require that all newborns be offered
screening for sickle cell disease.

i^omment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to John P.
Barkley, Department of Justice, P. O. Box 629,
Raleigh, NC 27602-0629. All written comtnents
must be received by January 20, 1994. Persons
who wish to speak at the hearing should contact
John P. Barkley at (919)733-4618. Persons who
call in advance of the hearing will be given
priority on the speaker's list. Oral presentation
lengths may be limited depending on the number of
people that wish to speak at the public hearing.
Only persons who have made comments at a public
hearing or who have submitted written comments
will be allowed to speak at the Commission
meeting. Comments made at the Commission
meeting must either clarify previous comments or
proposed changes from staff pursuant to comments
made during the public hearing process.

IT IS VERY IMPORTANT THAT ALL
INTERESTED AND POTENTIALLY AFFECTED
PERSONS, GROUPS, BUSINESSES,
ASSOCIATIONS, INSTITUTIONS OR AGENCIES
MAKE THEIR VIEWS AND OPINIONS KNOWN
TO THE COMMISSION FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS, WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALL
PROVISIONS OF THE PROPOSED RULES. THE
COMMISSION MAY MAKE CHANGES TO THE
RULES AT THE COMMISSION MEETING IF THE
CHANGES COMPLY WITH G.S. 150B-21.2(f).

CHAPTER 21 - HEALTH:
PERSONAL HEALTH

SUBCHAPTER 21H - SICKLE CELL

SYNDROME: GENETIC COUNSELING:

CHILDREN AND YOUTH SECTION

SECTION .0300 - GENETIC HEALTH CARE

.0314 SUBMISSION OF BLOOD

SPECIMENS FOR SCREENING
OF NEWBORNS

(a) The attending physician shall have drawn a
blood specimen for each infant born in North
Carolina and shall submit such specimens to the
North Carolina State Laboratory for Public Health
for testing for the following metabolic and other
hereditary and congenital disorders:

(1) phenylketonuria (PKU),

(2) galactosemia,

(3) congenital primary hypothyroidism,

(4) congenital adrenal hyperplasia
(21 -hydroxylase deficiency),

(5) sickle cell disease (non white infanta
only) .

(b) Notwithstanding Paragraph (a) of this Rule,
parents or guardians may object to screening in
accordance with G.S. 130 A- 125(b).

Statutory Authority G. S. 130A-125.

TITLE 18 - DEPARTMENT
SECRETARY OF STATE

iSotice is hereby given in accordance with G.S.
150B-21.2 that the NC Department of the Secre-
tary of State intends to adopt rules cited as 18
NCAC 8 .1201 - .1213.

1 he proposed effective date of this action is
March 1, 1994.

1 he public hearing will be conducted at 10:00
a.m. on January 10, 1994 at the Archdale Build-
ing, 5th Floor Conference Room, 512 N. Salisbury
Street, Raleigh, North Carolina 27611.

IXeason for Proposed Action: To implement a
certification program for local government proper-
ty mappers pursuant to G.S. 147-54.4.

Lsotnment Procedures: Interested persons may
present statements either orally or in writing at the
public hearing, or in writing prior to January 18,

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1792

PROPOSED RULES

1994 by mail addressed to Phil Stanley, Director,
Land Records Management Division , N. C. Depart-
ment of the Secretary of State, P.O. Box 27687.
Raleigh, N.C. 27611. For copies of any informa-
tion related to the hearing, call (919) 733-7006 or
write to the aforementioned address.

CHAPTER 8 - LAND RECORDS
MANAGEMENT DIVISION

SECTION .1200 - MINIMUM

CERTIFICATION REQUIREMENTS FOR

LOCAL GOVERNMENT PROPERTY

MAPPERS

.1201 INTRODUCTION AND PURPOSE

(a) The Department of the Secretary of State
(hereinafter referred to as Department), has devel-
oped minimum certification requirements for
property mappers in North Carolina. These
requirements are set forth in the rules of this
Section. The purposes of these requirements are
as follows:

(1) to insure that property mappers em-
ployed by local governments have every
opportunity to expand their professional
knowledge of new and state-of-the-art
mapping technologies;

(2) to insure that property mappers have
continual access to recognized courses
of instruction in the principles of prop-
erty mapping, and are cognizant of state
laws and established standards pertain-
ing to listing, appraisal, and assessment
of real property for taxation purposes;
and

(3) to insure that the State's investments
through grant awards are used wisely
and expertly by the local government
personnel who are responsible for
creating and maintaining large scale
cadastral maps which may be financed.
in part, by these funds.

(b) Copies of the requirements contained in this
Section, as well as related laws, may be viewed or
obtained by contacting the Land Records Manage-
ment Division. Department of the Secretary of
State. P.O. Box 27687. Raleigh. NC 27611. (919)
733-7006. The cost of copies will be twenty cents
($.20) per page to cover re-production and post-

Statutory Authority G.S. 147-37; 1 47-54. 3(f);
147-54. 4(e).

.1202 DEFINITIONS

In addition to the terms

defined in G.S.

147-54. 4(a)(1). the following definitions shall
apply to the rules in this Section:
(1 ) "AM/FM" means Automated Mapping
and Facilities Management.

ill
i3j

14}

(5}
16}

ill
18}

"ASPRS" means the American Society
for Photogrammetry and Remote Sensing.
"Division" means the Land Records
Management Division of the N.C.
Department of the Secretary of State.
"GIS/LIS" means Geographic Information
Systems/Land Information Systems.
"IAAO" means the International Associa-
tion of Assessing Officers.
"IOG" means the N.C. Institute of Gov-
ernment.
"NCPMA" means the North Carolina

Property Mappers Association.
"L'RJSA" means the Urban and Regional
Information Systems Association.

Statutory Authority G.S. 147-54. 4(a)(1);
147-54. 4(e).

.1203 ELIGIBILITY

Persons who are eligible to apply for certifica-
tions are defined in G.S. 147-54. 4(a) and (b).

Statutory Authority G. S. 147-54. 4(a); 147-54. 4(b);
l47-54.4(e).

.1204 APPLICATION PROCEDURES FOR
CERTIFICATION

Eligible persons shall apply for certification by
completing a Certification Application made
available by the Department. The applicant shall
include all documentation and fees as required in
Rules .1206 and .1207 of this Section prior to
being considered for certification.

Statutory Authority G.S. 147-54. 4(d); 147-54. 4(e).

.1205 APPLICATION PROCEDURES FOR
RENEWAL

The Division shall mail renewal notifications to
each property mapper whose certification is about
to expire. The renewal notifications shall be
mailed out on approximately October 1 and shall
be returned by the property mapper with adequate
documentation by December \_ in the year in which
the property mapper's certification expires. For
the convenience of the property mapper, the
Division shall also send a Certification Application
along with this notification accompanied by neces-

1793

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December 15, 1993

PROPOSED RULES

sary guidelines and instructions.

Statutory Authority G.S. 147-54. 4(d); 147-54. 4(e).

.1206 REQUIRED DOCUMENTATION

In order to be considered for certification or
recertification. the applicant shall supply the
Department with appropriate documents that give
evidence that the applicant has completed the
required courses, credit hours of instruction and
examination as described in Rules . 1208 and . 1209
of this Section. This evidence may come in

various forms including receipts, certificates,
diplomas, and affidavits. This documentation shall
accompany the completed application. If the
Department determines that the documentation is
inadequate, the application shall be deemed incom-
plete and shall be returned to the applicant with a
request for more information. The applicant shall
submit adequate documentation to the Department
within 15 calendar days of this request.

Statutory Authority G.S. 147-54. 4(b); 147-54. 4(e).

.1207 FEES

Applications for certification and renewal shall
be accompanied by the proper fees as set out ]n
G.S. 147-54. 4(d). Checks or money orders made
payable to the "State of North Carolina/General
Fund" shall be accepted for payment of fees . Cash
shall not be accepted .

Statutory Authority G.S. 147-54. 4(d); 147-54. 4(e).

.1208 INSTRUCTION AND EXAMINATION
FOR INITIAL CERTIFICATION

(a) An applicant shall attend the following
courses of instruction to be considered for initial
certification:

(1) IOG Listing & Assessing Class.
£2} NCPMA Mapping School.

(b) An applicant shall also obtain a passing
score on the following examinations prior to
receiving initial certification by the Department:

(1) TOG Listing & Assessing Exam.

(2) NCPMA's Certified Property Mappers
Exam.

Statutory Authority G.S. 147-54. 4(b); 147-54.4(e).

.1209 COURSES OF INSTRUCTION FOR RECERTIFICATION

£a} The courses of instruction with corresponding hours that will be credited toward recertification are as
follows:

COURSE HOURS

8:18 NORTH CAROLINA REGISTER December 15, 1993 1794

PROPOSED RULES

Li]
{21

14]

15]

16]

12]

18]

19]

(10)

Oi]

(12)

(13)

(14)

(15)

(16)

AM/FM International
GIS/LIS

IAAO Course #6

IOG Listing & Assessing

National URISA

NC ASPRS

NC GIS Conference

NC Surveyors Conference

NC URISA

NCPMA Fall Conference

NCPMA GIS Conference

24 hours

NCPMA Mapping School

NCPMA Regional Workshops 8

Society of Surveyors Chapter Meetings
Surveyors Institute

URISA Workshop 8

fb) An applicant shall complete at least 24 hours of the courses listed in Paragraph (a) of this
two years to be considered for recertification. The credit hours may include a combination
equalling 24 hours or one course equalling 24 hours,
(c) All accrued credit hours shall terminate with the certification renewal .

Statutory Authority G.S. 1 47-54. 4(b); 147-54. 4(c); 147-54. 4(e).

24 hours

16 hours

24 hours

8 hours

8 hours
16 hours

4 hours

16 hours

8 hours

24 hours

- 16 hours

4 hours

24 hours

- 16 hours

Rule every
of courses

.1210 CERTIFICATION SCHEDULE

(a) Local government property mapper initial
certifications are effective upon approval by the
Department and shall expire on December 31 of
the second calendar year following such approval .
Renewals are effective on January i and shall
expire on December 31 of the second calendar
year following such renewal. The fee submitted
with the application or renewal shall be the fee
pursuant to G.S. 147-54. 4(d) and shall not be
prorated, regardless of the month in which the
application is received for consideration.

(b) If the property mapper allows his certifica-
tion to lapse beyond 30 days, he will be required
to meet the requirements as described in Rule
.1208 of this Section.

Statutory Authority G.S. 147-54.4(b); 147-54.4(c);
147-54.4(d); 147-54.4(e).

.1211 APPLICATION REVIEW

The Department, with assistance from the Certif-
ication Board of the NCPMA, shall review each
application to insure that the applicant is eligible,
has completed all the necessary courses, and has
succeeded in submitting all the required documents
and fees.

Statutory Authority G.S. 147-54. 4(b); 147-54.4(e).

.1212 NORTH CAROLINA CERTIFIED

PROPERTY MAPPER CERTIFICATE

Upon meeting the criteria set forth in G.S.

147-54.4 and the rules of this Section, the property
mapper shall receive his certificate and personal
certificate number within 30 days of submitting his
application for certification or renewal . If the
application has to be returned for any reason,
(e.g., incomplete documentation pursuant to Rule
. 1206 of this Section) the property mapper shall
receive his certificate within 30 days of submitting
a new application and/or additional documentation.

Statutory Authority G.S. 147-54.4.

.1213 TERMINATION OF LOCAL

GOVERNMENT EMPLOYMENT

The termination of employment shall automatical-
ly disqualify the property mapper for renewal of
certification.

Statutory Authority G.S. 1 47-54. 4(a); 147-54. 4(b);
147-54.4(e).

TITLE 20 - DEPARTMENT OF
STATE TREASURER

1\ otice is hereby given in accordance with G.S.
150B-21.2 that the Local Government Commission
intends to amend rules cited as 20 NCAC 7 .0101 -
.0107, .0201 - .0203, .0301 - .0305, .0401 -
.0404, .0501 - .0505, .0602 and .0603.

1795

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December 15, 1993

PROPOSED RULES

1 he proposed effective date of this action is
March 1, 1994.

1 he public hearing will be conducted at 10:00
a.m. on January 6, 1994 at the Albemarle Build-
ing, Room 100, Conference Room, 325 N. Salis-
bury Street, Raleigh, NC.

tveason for Proposed Action: 1. To adjust
procedures to conform to the requirements laid out
in the Federal Deposit Insurance Corporation
Statements of Policy dated March 23, 1993, and
2. To make the language more reader-friendly.

(comment Procedures: Written comments regard-
ing these Rules should be mailed or delivered to
the APA Coordinator, Department of State Trea-
surer, 325 N. Salisbury Street, Raleigh, NC
27603-1385. Oral comments at the public hearing
must be accompanied by a written copy of the
comments.

CHAPTER 7 - COLLATERALIZATION
OF DEPOSITS

SECTION .0100 - GENERAL

.0101 GENERAL INFORMATION

(a) This Chapter sets forth the manner in which
the official depositories shall provide the
col lateralization of the uninsured balances on
deposit in accordance with provisions in G.S.
18B-702(d), G.S. 115C-443 and 444, G.S.
115D-58.6(b) and 58.7(b), and G.S. 147-69.1 and
79, G.S. 159-30 and 31, aftd G.S. 1 16-36. lfhL
and G.S. 84-34.1

(b) All correspondence to the State Treasurer
under this Chapter shall be addressed to: Division
of Investment and Banking, Department of State
Treasurer, 325 North Salisbury Street, Raleigh,
North Carolina 37644 27603-1385 .

Statutory Authority G.S. 115C-444(b); 147-79:
1 59-31 (b).

.0102 DEFINITION OF TERMS

The words and phrases defined in this Rule will
have the meanings indicated when used in this
Chapter, unless the context clearly requires
another meaning:

(1) (3) "Demand Deposits" are all deposits

that are not time deposits as defined in

these Rules,, Le^ all non-interest bearing
deposits .

(2) (3) "Deposit Accounts" include all
demand and time deposits as defined in
these Rules.

(3) {4) "Deposit Insurance" means the
insurance provided by the Federal
Deposit Insurance Corporation , and the
Federal — Savings — and — Loan — Insurance
Corporation .

{§) "Depositor" means the State Treasurer or

any custodian.

£4} {6} "Depository" means a financial
institution into which the State Treasurer
or a local participating unit is empowered
to deposit money with or without
interest, and which is required by law to
secure the deposits with deposit insurance
and or collateral securities.

(5) {7) "Governmental Unit" includes any
city, town, county, special district, public
hospital, public authority, whose deposits
are required to be secured.

(6) {&) " Local Participating Unit" means any
governmental unit, any city or county
school administrative unit, any
community college, and any local ABC
board,, any university depositing moneys
pursuant to G.S. 1 16-36(h), and the State
Bar of North Carolina .

(7) f4-) " Custodian Public Depositor " means
the State Treasurer or the person charged
with the custody of public deposits of a
local participating unit, or an institution
of the — University — of North — Carolina
depo s iting — money s — pursuant — to — Gt-St
1 16 36.1(h). — The custodian for the In
the case of special funds of the individual
schools of a city or county school
administrative unit, this person is the
school finance officer.

(8) (9) "Public Deposits" means all deposits
made to the account of the State
Treasurer and all deposits made by a
local participating unit in any depository,,
including those held by the depository m
an escrow capacity .

(9) f4Q) "State Funds" means deposits to the
account of the State Treasurer.

(10) ^44} "State Treasurer" means the State
Treasurer of North Carolina.

(1 1) ( 1 2) "Time Deposits" means

interest-bearing deposits with fixed

maturitie s of five years or less, including
certificates e£ — deposit. s aving s

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NORTH CAROLINA REGISTER

December 15, 1993

1796

PROPOSED RULES

certificates, savings accounts, negotiable
order of withdrawal (NOW) accounts,
and money market deposit accounts
(MMDA)^ and certificates of deposits and
savings certificates, both negotiable and
non-negotiable .

fl-3-) "Time Deposits Long Term" — mean s

certificates — ef- — deposit — and — s aving s
certificates with fixed maturities greater
then — five — years — from — th* — date — ef
acquisition.

Statutory Authority G.S. 115C-444(b); 147-79;
159-3 1(b).

.0103 NOTIFICATION BY DEPOSITOR

(a) When opening a new deposit account, the
State Treasurer or the cu s todian public depositor
shall provide the depository either written or oral
notification that the deposits in said deposit
account are public deposits subject to the
collateralization rules.

(b) As of June 30 of each year, or when
requested by the State Treasurer, the custodian
public depositor shall provide the depository Form
INV-91 " Notification of Public Deposit Statu s
Report ", listing the current account names and
numbers of all public deposit accounts, and shall
provide a duplicate copy to the State Treasurer.
Form INV-91 shall be certified by the custodian
public depositor that the statements are correct.

(c) If the depository has any reason to believe
that a deposit account for which it has e© not
received a notification pursuant to Paragraph (a) of
this Rule is in fact a public deposit, it may forward
to the custodian public depositor a written request
for verification of the deposit account. The
custodian public depositor shall respond promptly
to this request in writing to the depository.

Statutory Authority G.S. 115C-444(b); 147-79;
159-31 (b).

.0104 METHODS OF SECURING DEPOSITS

fa-> — Depo s its of State fund s . — Unin s ured State
funds except for time deposits long term shall be
secured — through a pool of collateral subject to the
provi s ion s relating to Option 2 except as otherwise
provided in thi s Chapter.

{&) Deposits — of Local — Participating — Cnits.

Except for time deposits long term each depository
shall have the following options:

fH Option — ]-. Te — secure — ati — uninsured

public — depo s its — ef- — eaeh — custodian
s eparately. Each — custodian — shall

maintain — a — record — of the — securities
pledged for monitoring purposes.

{3-) Option — 3r. Te — s ecure — aH — uninsured

public — deposits — ef- — every — custodian
through a pool of collateral established
by — the — depository — with — the — State
Trea s urer for the benefit of the State
and the local participating units. The
State Treasurer s hall maintain a record
of the s ecurities pledged for monitoring
purposes.

iej Time — Deposits Long — Term. A-H — Hme

depo s its long term shall be secured separately from
all oth e r depo s its of the s tate, a governmental unit,
a school unit, a mutual fund operated pursuant to

GrS^ 159 30(c)(6a) — ef — a — housing — authority

e s tablished pursuant to G.S. — 1-St^ — The separate
collateralization shall continue for a s long as the
State Trea s urer or custodian holds the investment.
Deposit insurance shall not be con s idered when
e s tabli s hing the required amount of collateral. The
rules in Sections .0200. .0300. .0 4 00, and .0600
ef- — this — Chapter. — net — incompatible — with — this

Paragraph, shall apply. Reports required under

Section .0500 of thi s Chapter s hall be submitted in
the manner required for Option 1 .

fd} — Mutual funds operating pursuant to G.S.
159 30(c)(6a) shall be secured separately from all
other depo s its of the s tat e , a local participating unit
or a housing authority in the same manner as
though the chief financial officer of the manager of
the mutual fund is a custodian. — Deposit insurance
may. but is not required to. be con s idered when
establishing the required amount of collateral. — The
rule s in Section s .0200. .0300, .0 4 00 and .0600 of
thi s Chapter not incompatible with thi s Paragraph
s hall apply. — Forms required in the rules may but
need not be used at the di s cretion of the custodian.
The — custodian — may — with — the — con s ent — ef- — the
depository require more stringent conditions but
shall not permit any less s tringent conditions than
the rules in this Chapter. — Reports required under
Section .0500 of this Chapter shall be submitted in
a manner mutually agreed upon by the custodian
and the depo s itor)' provided that all information
required — te — be — reported — under — Option — 4 — is
contained in the report.

(a) Deposits of Public Depositors. Except for
public deposits of housing authorities each
depositors' shall have the following options:

(1 ) Dedicated Method. To secure all
uninsured public deposits of each public
depositor separately. The depository
shall maintain a record of all securities
pledged, with such record being an

7797

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NORTH CAROLINA REGISTER

December 15, 1993

PROPOSED RULES

official record of the depository and

made available to examiners or

representatives of all regulatory

agencies. Each public depositor shall

maintain a record of the securities

pledged for monitoring purposes.

(2) Pooling Method. To secure all

uninsured public deposits of every

public depositor through a pool of

collateral established by the depository

with the State Treasurer for the benefit

of the State and the participating units.

The depository shall maintain a record

of all securities pledged, with such

record being an official record of the

depository and made available to

examiners or representatives of all

regulatory agencies. The State

Treasurer shall maintain a record of the

securities pledged for monitoring

purposes.

(be) Notwithstanding the definitions in 20

NCAC 7 .0102, housing authorities established

pursuant to G.S. 157, Article 1 and operating

under the provisions of the United States Housing

Act of 1937, as amended, shall not be con s idered

govcrnracntal units for the purpose of thi s Chapter

eligible to be included in the Pooling Method .

The deposits of such housing authorities shall be

collateralized separately with the chief financial

officer of the housing authority acting as custodian

under the Dedicated Method, and in accordance

with any further restrictions required by

regulations of the United States Department of

Housing and Urban Development . The rule s in

Sections .0200, .0300, .0 4 00 and .0600 of this

Chapter, — »et — incompatible with — this — Paragraph

shall apply. — Reports required under Section .0500

of this Chapter shall be submitted in the manner

required for Option 1 .

(c) The State Treasurer shall maintain a listing
of depositories which have selected the Pooling
Method, and shall periodically make such listing
available to all participating units.

Statutory Authority G.S. U5C-444(b); 147-79;
159-31 (b).

.0105 EXERCISING THE POOLING
METHOD

(a) Until Form INV 92 is filed with the State
Treasurer and the custodian, the depository — is-
under Option 1 Unless and until the requirements
of this Rule are met, the depository is considered
to be under the Dedicated Method.

(b) If the depository selects Option 2 the Pooling
Method , it shall:

(1) Submit to the State Treasurer a letter of
intent, indicating the effective date it
intend s to elect Option 2 desires to
convert to the Pooling Method , which
shall not be prior to the date the
requirements of Items 2, 3, and 4 this
Paragraph Rule are met.

(2) Submit to the State Treasurer an
executed Form INV-93A, "Security
Agreement with Resolution", required
to comply with Rule .0305 of this
Chapter.

(3) {3) Submit to the State Treasurer all
executed escrow agreements required to
comply with Rule .0303(b) of this
Chapter .

(4) {3) Submit to the State Treasurer Form
INV-99, "Selected Financial Data,"
referred to in Rule .0501(c) of this
Chapter .

(5) (4) Submit to the State Treasurer Form
INV-97, "Annual Report on Public
Deposits" referred to in Rule .0502(c)
of this Chapter ; however, the report
shall be for the period immediately
preceding the date of the election of
Option 2 the Pooling Method .

(6) {§) Submit to each custodian public
depositor Form INV-92, "Election of
Option 2 Pooling Method ," notifying
them that it has opted to pool the
collateral of all public deposits through
the State Treasurer; and provide the
State Treasurer a duplicate copy of all
"Election of Option 2 Pooling Method "
forms.

(c) When Option 2 Pooling Method is chosen,
the depository shall pledge the required amount of
collateral with the escrow agent in one of two
ways:

(1) The depository shall request the
custodian public depositor to sign a
letter authorizing the escrow agent to
release any collateral securities pledged
to the local participating unit to be
simultaneously repledged to the State
Treasurer,, with the effective date of the
release not being prior to the effective
date indicated on the Form INV-92 .
The recognized effective date shall be
the date on which the escrow agent
records the pledge of the required
collateral securities to the State

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NORTH CAROLINA REGISTER

December 15, 1993

1798

PROPOSED RULES

Treasurer.
(2) The depository shall first pledge the
required amount of collateral securities
with the escrow agent to the account of
the State Treasurer, and then request
the cu s todian public depositor to sign a
letter authorizing the escrow agent to
release any collateral securities pledged
to the local participating unit without
substitution. The recognized effective
date shall be the date on which the
depositor)' files Form 1NV92 with the
Stat e — Treasurer the effective date
indicated on the Form IN'V-92.

(d) The custodian public depositor shall
promptly sign any authorization letter referred to
in Paragraph (c) of this Rule.

Statutory Authority G. S. 115C-444(b); 147-79;
1 59-31 (b).

.0106 FORMS

The following forms shall be promulgated by the
State Treasurer and shall be used for the purpose
outlined in this Chapter unless specific permission
is given to use a substitute:

INV-91 Notification of Public Deposit

Status Repor t,

INV-92 Election of Option 2 Pooling

Method .

INV-93A Security Agreement with

(1)

(2,
11)

141
(5)
16}
ID
lil
19)
(10)
11

Resolution (Pooling Method).

f3-) INV-93B Escrow Agent Agreement

(Pooling Method) ,

INV-94A Security Agreement with

Resolution (Dedicated Method).

(4) INV-94B Standard Escrow Agent

Agreement (Dedicated Method) ,

{&) INV-95 Request for Collateral

Change Pledge and/or Release ,

<6) IXV-96 Quarterly Report on Public

Deposits,

£7) INV-97 Annual Report on Public

Deposits.

{&) INV-98 Annual Report on Collateral

for Public Deposits,

(94 INV-99 Selected Financial Data.

Statutory Authority G.S. 115C-444(h); 147-79;
159-3 Kb).

.0107 DUTY OF DEPOSITORY

By accepting public deposits, the depository
assumes the duty and responsibility of maintaining
adequate collateral as provided by law and in

accordance with the provisions of this Chapter, for
all uninsured deposits in accounts for which the
custodian public depositor has notified the
depository pursuant to Rule .0103 of this Chapter.

Statutory Authority G.S. 115C-444(b); 147-79;
159-31 (b).

SECTION .0200 - SECURITIES TO BE
DEPOSITED

.0201 ELIGIBLE INVESTMENT
SECURITIES

The following types of investment securities are
eligible for pledging as security provided that the
securities are currently eligible for investment by
the depository and can be included at full value in
the reserves of the depository:

(1) Obligations of the United States of
America;

(2) Obligations of any agency or
instrumentality of the United States of
America if the payment of such
obligations is fully guaranteed by the
United States of America;

(3) Obligations of the State of North
Carolina, the N.C. Medical Care
Commission, the N.C. Housing Finance
Agency, the N.C. State Education
Assistance Authority and the component
institutions of the University of North
Carolina;

(4) Bonds or notes of any North Carolina
local government or public authority
issued with the approval of the Local
Government Commission and not
currently in default on payment of
interest or principal of any of its bonds
or notes;

(5) General obligations bonds of other states
whose full faith and credit are pledged to
the payment of principal and interest
thereof;

(6) Bonds, notes and other direct obligations
of the Federal Financing Bank, the
Federal Farm Credit Bank System , the
Bank — fef — Cooperative s . — the — Federal
Intermediate Credit Bank, the Federal
Land Banks, the Federal Home Loan
Banks, the Federal Home Loan Mortgage
Corporation, the Federal National
Mortgage Association, the Government
National Mortgage Association, the
Federal Housing Administration, the
Farmers Home Administration, the

1799

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PROPOSED RULES

United States Postal Service, the
Export-Import Bank, the International
Bank for Reconstruction and
Development, the International Finance
Corporation, the Inter-American
Development Bank, and the Asian
Development Banki the African
Development Bank, and the Student Loan
Marketing Association;

(7) Bonds or notes of a housing authority
established or to be established pursuant
to Article 1, Chapter 157 of the General
Statutes of North Carolina or issued by
any public housing authority or agency in
the United States, when such bonds and
notes are secured by a pledge of an
annual contribution to be paid by the
United States government or any agency
thereof, or bonds or notes which may be
issued by a not-for-profit corporate
agency of a housing authority secured by
rentals payable pursuant to Section 23 of
the United States Housing Acts of 1937,
as amended;

(8) Pre-refunded bonds and bonds escrowed
to maturity - the issuer shall have applied
for and received a re-rating of "AAA" by
at least one nationally recognized rating
service by reason of U.S. Government
securities being escrowed with the
trustee;

(9) Special obligation bonds - if they must be
were originally rated "AAA" by reason
of U.S. Government securities being
escrowed with the trustee;

(10) Prime quality commercial paper bearing
the highest rating of at least one
nationally recognized rating service and
not bearing a rating below the highest by
any nationally recognized rating service
which rates the particular obligation;

(1 1) Bills of exchange or time drafts drawn on
and accepted by a commercial bank and
eligible for use as collateral by member
banks in borrowing from a federal
reserve bank, provided that the accepting
bank or its holding company is either:

(a) incorporated in the State of North
Carolina; or

(b) has outstanding publicly held
obligations bearing the highest rating of
at least one nationally recognized rating
service and not bearing a rating below
the highest by any nationally recognized
rating service which rates the particular

obligations.
In case of questions, it is the responsibility of the
depository to demonstrate that the security pledged
does fulfill the requirements of this Rule.

Statutory Authority G. S. U5C-444(b); 147-79;
159-31 (b).

.0202 AMOUNT OF COLLATERAL
REQUIRED TO BE PLEDGED

(a) Under Option 1 the Dedicated Method , each
depository, which is required to pledge collateral
to secure the deposit accounts of a public moneys
depositor , shall maintain collateral with an escrow
agent equal to or in excess of 100 percent of the
total amount of all depo s its deposit accounts to the
credit of the custodian public depositor less the
allowable credit for deposit insurance.

(b) Under Option 2 the Pooling Method , the
amount of required collateral shall be the sum of
the amounts required to be collateralized for all
public depositors in the financial — institution
depository calculated as follows:

(1) Demand Deposits. 100 percent of the
average daily balance for the calendar
year to date, or 100 percent of the
average daily balance for the immediate
preceding three calendar month period,
or 100 percent of the average daily
balance for the current month to date,
or such other balance as shall be given
prior approval by the State Treasurer,
less the applicable deposit insurance for
each public depositor. Calculations for
any period other than the "current
month to date" method may be based
on the period ending the last day of the
prior month. At the option of the State
Treasurer, the Treasurer may require
calculations to be in accordance with
the requirements of an — Option — t
depository the Dedicated Method , if it
is deemed that the averaging method for
a particular depository does not
accurately reflect the amount of
deposits to be secured.

(2) Time Deposits. 100 percent of the
actual current balance, less the
applicable deposit insurance for each
public depositor.

(c) The maximum amounts of deposit insurance
which may be accepted applied to a public
depositor shall be one hundred thousand dollars
($100,000) on demand deposits and a separate one
hundred thousand dollars ($100,000) on time

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1800

PROPOSED RULES

case of the

amount of collateral

deposits- — An unused amount of inaurance may not
be applied to another cu s todian or to another type
of deposit. • however, the deposits in the name of
the an individual school treasurers shall be allowed
one hundred thousand dollars ($100,000) total
insurance on both time and demand deposits
combined . An unused amount of insurance may
not be applied to another public depositor or to
another type of deposit.

(d) All eligible securities pledged shall be valued
at current market.

(e) The custodian public depositor in the case of
public — deposits — separately — collateralized the
Dedicated Method and the State Treasurer in the

Pooling Method may require the
to be pledged by the
depository to be 10 percent greater than the
amount required under this Rule, if the market
value of pledged securities is below the amount
reasonably required to insure public deposits
against the risks apparent at the time of the
request.

Statutory Authority G S. U5C-444(b); 147-79;
159-31 (b).

.0203 SURETY BONDS

Surety bonds with a corporate surety may be
substituted in lieu of part or all of the collateral
required under this Chapter under the following
conditions:

(1) The company is licensed by the
Commissioner of Insurance to conduct
the business of suretyship in North
Carolina, and is acceptable to the State
Treasurer.

(2) The company may not provide surety
bonds to collateralize public deposits
within North Carolina in amounts
exceeding the underwriting limitations
established by the U.S. Department of
the Treasury as provided in Sections
3904 to 3908 of Title 3 1 of the United
States Code or successor provisions.

(3) The bond must not permit reduction in
the penal amount except with the express
written permission of the State Treasurer
in the case of the Pooling Method , or
custodian in the case of public deposits

other — than state funds separately

collateralized the Dedicated Method .

(4) The company must agree to provide the
State Treasurer a quarterly report listing
all surety bonds issued to collateralize
public deposits in North Carolina. The

report shall list as- at a minimum the
person to whom issued, the depository
for whom issued, the penal sum at the
end of the quarter, the highest penal sum
during the quarter and the date(s) to
which the highest penal sum applied, and
the underwriting limitation as defined in
Paragraph (2) of this Rule currently in
effect .

(5) The surety bond must include the rules in
20 NCAC 7 by reference and provide
that said rules and the definitions therein
shall prevail in all questions of conflict
with other provisions of the bond.

(6) The bond shall be payable in federal
funds no later than the tenth calendar day
after final adjudication. Final
adjudication means the issuance of a
ruling by the State Treasurer that a
default exists, which ruling has not been
stayed by an appeal of the ruling as
provided by law.

The words "collateral" and "collateralize" shall
include surety bonds and the use of surety bonds
when used in any rule of this Chapter not
incompatible with this Rule.

Statutory Authority G.S. U5C-444(b); 147-79;
159-31 (b).

SECTION .0300 - ESCROW
OF SECURITIES

.0301 ELIGIBLE ESCROW AGENTS

All securities pledged to secure public deposits
shall be deposited either:

(1) with a Federal Reserve Bank or a Federal
Home Loan Bank or a branch thereof
pursuant to Rule .0302 of this Section; or

(2) with a an unaffiliated, national or
state-chartered bank with authority to
conduct a trust business pursuant to Rule
.0303 of this Section.

Statutory Authority G. S. 115C-444(b); 147-79;
159-3 1(h).

.0302 ESCROW WITH FEDERAL

RESERVE BANK OR FEDERAL
HOME LOAN BANK

(a) Securities pledged with a Federal Reserve
Bank or a branch thereof shall be deposited under
Circular 16 of the Federal Reserve Banks in the
name of the State Treasurer in the case of Option
3 the Pooling Method or the cu s todian public

1801

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PROPOSED RULES

depositor in the case of Option 1 the Dedicated
Method . The appropriate signature card must be
executed .

(b) Securities pledged with a Federal Home
Loan Bank or a branch thereof shall be deposited
as provided in Regulation 5 4 5.2 4 2 and 5 4 5.2 4 3
of the Federal Home Loan Bank in the name of
pursuant to Rule .0303(b) of this Section, and
pursuant to the terms of the Federal Home Loan
Bank's "Pledge Agreement Custody Receipt"
which may be in effect from time to time. The

pledgee shall be the State Treasurer in the case of
Option 2 the Pooling Method or the custodian
public depositor in the case of Option — I the
Dedicated Method .

Statutory Authority G S. 115C-444(b); 147-79;
159-31 (b).

.0303 ESCROW WITH A NATIONAL
OR STATE-CHARTERED BANK

(a) Any unaffiliated bank or trust company
which is authorized to conduct a trust business and
is chartered by the United States government or
any of its fifty states is eligible to act as an escrow
agent.

(b) All escrow accounts shall be established with
the appropriate Escrow Agent Agreement. AH-
Escrow accounts for the State Treasurer under the
Pooling Method shall be established by Form
INV-93B. "Escrow Agreement". — AW Escrow
accounts for a custodian public depositor under the
Dedicated Method shall be established by Form
INV-94B "Standard Escrow Agreement" . The
escrow agent agreements shall contain the
necessary language to establish the required trust
as provided in this Chapter.

Statutory Authority G. S. 115C-444(b);
159-31 (b).

147-79;

.0304 PLEDGING: RELEASING AND
SUBSTITUTING COLLATERAL

(a) All pledges and releases of collateral to or
from an escrow account shall be carried — »trt
initiated by means of Form INV-95 "Request for
Collateral Change Pledge and/or Release Form ".
The form shall require the following:

(1) Amount and description (including
CUSIP numbers) of securities to be
released and pledged;

(2) The effect of the transaction(s) on the
total collateral pledged, including the
percentage of excess then pledged, if a
decrease;

(3) Prior approval of all reductions in the
total amount releases and substitutions
of collateral by the State Treasurer or
custodian public depositor, as
applicable ;

(4) That all transactions be reported to the
State Treasurer or cu s todian public
depositor as applicable ; and

(5) Certification by an authorized official
of the depository that after the
transaction(s) are completed, the
collateral pledged meets the
requirements of Rule .0202 of this
Chapter.

(b) Forms INV 93 and INV 9 4 shall provide for
the substitution of eligible collateral for collat e ral
already pledged on a par for par basis. Nothing in
this Rule shall have the effect of reducing the
obligations of the depository to secure public
deposits or the required amount of collateral to be
pledged. Th e State Trea s urer may, at his sole
discretion, rescind permanently or for a period of
time the depo s itory' s right of s ubstitution by a
letter of instruction mailed to the e s crow agent at
his place of business a s s hown in the escrow
agreement certified mail, return receipt requested.

(c) The depository may substitute its own format
for Form INV-95 provided the format is
substantially the same in content and order of
presentation.

Statutory Authority G. S. 115C-444(h); 147-79;
159-31 (b).

.0305 SECURITY AGREEMENTS

Separate collateralization of depo s its pursuant to
20 NCAC 7 .010 4 and 20 NCAC 7 .0 4 01(b) shall
require escrow agreements, escrow accounts and
reports — s eparate — and — apart — from — the — e s crow
agreement s , escrow accounts, and reports used in
the process of collateralizing the regular deposits
of the depositor.

(a) Under the Dedicated Method, each
depository which is required to pledge collateral to
secure the deposits of a public depositor, shall
execute with the public depositor Form INV-94A,
"Security Agreement with Resolution". Form
INV-94A shall consist of both a "Depository
Resolution" and a "Security Agreement".

(b) Each depository that elects the Pooling
Method is required to execute with the State
Treasurer Form INV-93A, "Security Agreement
with Resolution". Form INV-93A shall consist of

both a "Depository Resolution'
Agreement".

and a "Security

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1802

PROPOSED RULES

£c] Forms INV-93A and INV-94A shall contain
the necessary language required to establish the
provisions for the perfected delivery of collateral
securities pursuant to the requirements of the
Federal Deposit Insurance Corporation's Policy
Statement dated March 23, 1993, and the North
Carolina Uniform Commercial Code.

Statutory Authority G.S. U5C-444(b); 147-79;
159-3 lib).

SECTION .0400 - DELIVERY

AND SALE OF PLEDGED

SECURITIES IN THE EVENT

OF DEFAULT

.0401 REQUEST FOR DELIVERY
OF PLEDGED SECURITIES

(a) The State Treasurer shall, upon default of
the depository', request delivery of such part of the
pledged collateral as may be needed to hold the
State Treasurer and or any other — political
subdivision participating unit harmless from losses
incurred by the default. The State Treasurer shall
have full discretion as to the amounts and
securities to be delivered but shall attempt to
choose those securities which he believes to be the
most saleable in the circumstances.

(b) A default is defined as the failure of the
depository to fulfill its statutory duties to honor
timely requests for withdrawals. A legitimate
dispute regarding the liability of the depository for
specific items of deposit or withdrawal shall not be
considered a default during the period of
adjudicating the dispute so long as the disputed
amounts are 100 percent separately collateralized
by the depository at market value in accordance
with this Chapter.

(c) The State Treasurer shall provide at least 24
hours notice to the depository and may provide up
to 7 calendar days notice of his order to the
escrow agent to deliver part or all of the pledged
securities to the State Treasurer and notice of the
amount of the default. During the notice period
the depository shall have the right to pay off the
amount in default in full by the sale of any of the
securities pledged which the depository chooses to
sell, provided that the escrow agent or the
depository shall transfer the entire amount of the
default in federal funds to the State Treasurer prior
to the due date for delivery of the pledged
securities. This notice may be provided solely by
telephone communication.

Statutory Authority G. S. 115C-444(b); 147-79;

159-31 (b).

.0402 SAFEKEEPING OF DELIVERED
SECURITDIS

(a) The State Treasurer may. at his sole
discretion, require delivery either to the Investment
and Banking Division, Department of State
Treasurer, 325 North Salisbury Street, Raleigh,
North Carolina 2761 1 -1385 or to any duly licensed
State chartered or national bank designated by the
State Treasurer.

(b) The State Treasurer shall use the same care
with respect to the custody of the delivered
securities as he exercises with respect to the State
investments in his custody but he will not insure
the delivered securities against any risks.

Statutory Authority G. S. 115C-444(b); 147-79;
159-31 (b).

.0403 CERTIFICATION OF DEFAULT
BY PUBLIC DEPOSITORS

(a) The custodian public depositor shall provide
to the State Treasurer a statement of all
circumstances which he feels gives rise to a
default. Each custodian public depositor is
requested to discuss with the State Treasurer the
need for a ruling on the existence of a default prior
to the sending of the statement. The statement shall
be notarized and mailed to the State Treasurer
certified mail, return receipt requested. In
addition, each custodian public depositor shall
provide the State Treasurer with certified copies of
the security agreement with resolution, the escrow
agent agreements, or other agreement and the last
a current list of securities pledged to secure the
applicable deposit account accounts .

(b) The State Treasurer shall make a
determination no later than the close of the
business day, next following receipt of the request
with regard to the default. The State Treasurer
may, in his sole discretion, rule that:

(1) a default has occurred,

(2) a default has not occurred, or

(3) that additional information is necessary
before a ruling can be made.

If additional information is necessary, the
cu s todian public depositor may provide the
information required. If it is provided, the
cu s todian public depositor shall submit the
information, notarized, by certified mail, return
receipt requested. Receipt of the new information
shall be considered to be a new request for
determination. Appeal of a ruling of the State
Treasurer shall be considered a contested case.

1803

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PROPOSED RULES

(c) Upon ruling that there is a default as regards
a public depositor other than the State Treasurer,
the State Treasurer shall proceed under Rule .0401
of this Section.

Statutory Authority G. S. 115C-444(b); 147-79;
159-31 (b).

.0404 SALE OF THE DELIVERED
SECURITIES

(a) The State Treasurer shall canvass its normal
buyers for the type of securities which are to be
sold and all potential buyers furnished to him by
the depository from among licensed dealers who
either make a market in the security or are
currently offering to buy the security.

(b) The State Treasurer shall sell as much of the
securities as are needed to provide cash to cover
the amount of the default. The State Treasurer
may sell, at his sole discretion, all or part of any
specific issue of security to be sold.

(c) The State Treasurer shall deposit the amount
of any default on State deposits deposit accounts of
State funds in the applicable fund of the State and
shall return all unsold securities and excess cash to
the depository. The State Treasurer shall provide
to the depository a release for the amount of
default paid and such other documentation as may
be appropriate to enable the depository to pursue
a claim against a third party for the amount of the
default.

(d) If the default is on deposits deposit accounts
of another — custodian a public depositor of a
participating unit , the State Treasurer shall retain
the amount of the default and shall return all
unsold securities and excess cash to the depository.
The State Treasurer shall determine the amount
distributable to each public depositor, not to
exceed the uninsured amount in default. The State
Treasurer shall pay the amount in default to the
other cu s todian public depositor after receiving
from the other custodian public depositor a
release, in duplicate, for the amount in default paid
and such other documentation as may be
appropriate to enable the depository to pursue a
claim against a third party for the amount of the
default.

Statutory Authority G S. 115C-444(b); 147-79;
159-31 (b).

SECTION .0500 - REPORTING

.0501 QUARTERLY REPORTING

(a) In the case of Option — 1- the Dedicated

Method , each the depository shall report to the
each custodian public depositor the total par value
and market value of securities pledged on the last
day of the calendar quarter with the escrow
agent(s) to secure public deposits of the public
depositor . The report reports shall be submitted
no later than the last day of the following month.

(b) In the case of Option 2 the Pooling Method ,
eaeh- the depository shall submit Form INV-96
"Quarterly Report on Public Deposits" to the State
Treasurer no later than the last day of the month
following the end of the calendar quarter. The
report shall be dated on the last working day of the
calendar quarter, shall summarize the accounts te
be secured, shall summarize the amounts insured
and secured at market, shall indicate the amount
and percentage of excess collateral pledged, and
shall be certified by an authorized officer of the
depository that the statements are correct.

(c) In addition to the Quarterly Report required
by Rule .0501(b) of this Rule, Option 2 a
depository utilizing the Pooling Method institutions
shall submit to the State Treasurer Form INV-99
"Selected Financial Data," which is a report
containing selected financial data contained in
either the current quarterly report of condition
required by the Federal Deposit Insurance Act (12
U.S.C.) or the current quarterly report required to
be filed with the Federal Home Loan Bank Board,
as applicable.

Statutory Authority G S. 115C-444(b); 147-79;
159-31 (b).

.0502 ANNUAL REPORTING

(a) In the case of Option — 1- the Dedicated
Method , on or before July 31 of each year, the
depository shall submit to the custodian each
public depositor Form INV-98.

(b) In the case of Option 2 the Pooling Method ,
on or before July 3 1 of each year, each depository
shall submit to the State Treasurer Forms INV-97
and INV-98, in addition to the quarterly report
(INV-96) dated June 30.

(c) Form INV-97 "Annual Report on Public
Deposits" shall be dated June 30, shall list all
public depositors, and for each public depositor,
show the amounts on deposit by type, identify the
amounts insured by type, and shall be certified by
an authorized officer of the depository that the
statements are correct.

(d) Form INV-98 "Annual Report on Collateral
for Public Deposits" shall be dated June 30, shall
list and describe all collateral pledged (including
CUSIP number, par and market value), with each

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1804

PROPOSED RULES

escrow agent for the cu s todian public depositor or
State Treasurer, and shall be certified by an
authorized officer of the depository that the
statements are correct.

(e) The depository may substitute tm its own
format for Form INV-97 and Form INV-98,
provided the format is substantially the same in
content and order of presentation.

Statutory Authority G. S. 115C-444(b); 147-79;
159-31 (b).

.0503 SPECIAL CALL REPORT

Not more often than once in each annual period,
the State Treasurer may require each depository to
furnish a report in the same detail as the annual
report as of any business day not more than 10
calendar days before the date at which the special
request for the report is mailed. In addition, the
State Treasurer may require a detailed report
listing the account numbers of each public
depositor.

Statutory Authority G. S. 115C-444(b); 147-79;
159-31 (b).

.0504 SPECIAL REPORTING RULE
FOR DEDICATED METHOD
DEPOSITORIES

A depository which has State funds and which
has set elected Option 2 the Dedicated Method
shall file the — reports — required — m — Paragraphs
.0501(a), .0501(c), and .0502(a) ,, in addition to all
forms required under the Dedicated Method, Form
INV-99 "Selected Financial Data," referred to in
Rule .0501, Paragraph (c) of this Section .

Statutory Authority G.S. 115C-444(h); 159-3 1(b).

.0505 ADDITIONAL MONTHLY

REPORTING REQUIREMENTS

In the case of Option 2 the Pooling Method , the
State Treasurer may at any time and at his own
discretion direct the depository to file a report in
the same format as the Quarterly Report required
by Rule .0501(b), but on a monthly basis.
However, the monthly reporting directive shall be
required under any one of the following
circumstances:

( 1 ) A required report is repeatedly not filed
timely.

(2) A required report is filed with a material
error.

(3) A Quarterly Report required by Rule
.0501(b) is filed indicating that "excess"

collateral pledged is less than 10 percent
of the amount required by Rule .0202.
(4) The depository has been notified that the
State Treasurer has invoiced Rule
.0202(e), requiring additional collateral
calculation s.
Such monthly reporting directive shall be effective
for a period of six months, after which time the
depository may resume quarterly reporting.
However, subsequent violations shall extend the
period of monthly reporting as set forth in this
Rule.

Statutory Authority G.S. 115C-444(b); 147-79;
159-31 (b).

SECTION .0600 - ENFORCEMENT

.0602 REVOCATION

The State Treasurer may at any time and at his
own discretion revoke the right of a depository to
use the — collateral — peel the Pooling Method
pursuant to 20 NCAC 7. An appeal of such an
order shall be considered a contested case. During
the processing of the contested case the order shall
remain in effect.

Statutory Authority G. S. 1 15C-444(b); 159-31 (b).

.0603 ACCELERATION OF MATURITIES

(a) Whenever any depository shall fail to correct
a deficiency in collateral pursuant to this Chapter,
including but not limited to Rule 20 NCAC 7
.0202(e), the State Treasurer or the custodian
public depositor of a participating unit , as the case
may be, shall cause to be made an oral demand to
the depository to correct the deficiency.

(b) The custodian public depositor , in the case
of public — depo s its — s eparately — collateralized the
Dedicated Method , shall report any failure of a
depository to correct a deficiency in the collateral
pursuant to this Chapter to the State Treasurer no
less than one full work day after the oral request
to correct the deficiency. This report shall include
a full statement of the circumstances surrounding
the deficiency. The report shall be oral but shall
be immediately followed by a written report.

(c) The State Treasurer, after receiving the oral
report from a custodian public depositor pursuant
to Paragraph (b) or no less than one full work day
after the oral request was made in his name to a
depository which fails to correct the deficiency in
the collateral required by this Chapter, shall issue
a written request to the depository to correct a
deficiency in the collateral required by this

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PROPOSED RULES

Chapter. The depository may request a hearing
within seven days of the receipt of the request.
The appeal of the ruling by the State Treasurer
resulting from the hearing shall be a contested case
heard pursuant to Subchapter IF of this Title.

(d) Any depository which after receiving the
written request to correct a deficiency in the
collateral does not correct the deficiency shall be
subject to the provision of automatic acceleration
of any time deposits of public depositors having
fixed maturities ©n — aH — investments — m — the
depository subject to this Chapter . On or after
seven days from the receipt of the written request
sent pursuant to Paragraph (c) of this Rule or three
days from the receipt of the written decision of the
State Treasurer arising from the contested case
hearing, the State Treasurer may cause all time
deposits having fixed maturities to be accelerated
and become due and payable on demand without
any loss in interest through the date actually paid
by the depository.

Statutory Authority G.S. 115C-444(b); 147-79;
159-31 (b).

TITLE 21 - OCCUPATIONAL
LICENSING BOARDS

iSotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina State Board of
Chiropractic Examiners intends to adopt rule cited
as 21 NCAC 10 .0303 and amend .0103.

1 he proposed effective date of this action is
March 1, 1994.

1 he public hearing will be conducted at 9:00
a.m. on January 8, 1994 at the Sheraton Airport
Hotel, 3315 South 1-85 at Billy Graham Parkway,
Charlotte, NC.

MXeason for Proposed Action:

21 NCAC 10 .0103 is being amended to separate

the offices of Secretary and Treasurer of the

Board.

21 NCAC 10 .0303 is being adopted to interpret

G.S. 90-400, which prohibits the use of paid

runners to solicit patients.

Comment Procedures: Written comments may be
sent to the Board for 30 days after publication.
The Board's mailing address is P.O. Box 312,

Concord, NC 28025. Oral comments will be
received at the public hearing.

CHAPTER 10 - BOARD OF
CHIROPRACTIC EXAMINERS

SECTION .0100 - ORGANIZATION
OF BOARD

.0103 STRUCTURE OF BOARD

(a) Creation and Membership of Board of
Examiners. The creation and membership of the
Board of Chiropractic Examiners are governed by
G.S. 90-139, which statute is herewith incorporat-
ed by reference in accordance with G.S.
150B- 14(c).

(b) Selection of Chiropractic Members of Board
of Examiners. The selection of chiropractic
members of the Board of Examiners is governed
by G.S. 90-140, which statute is herewith
incorporated by reference in accordance with G.S.
150B- 14(c).

(c) Election of Candidates for Appointment to
the Board. Annually, the Board shall select a
time, date and place for the election of chiropractic
candidates for appointment to the Board. At least
three candidates shall be elected for each vacancy.
The candidate receiving the most votes in each
election shall be given a special recommendation.

(1) The election shall be conducted by the
Board of Chiropractic Examiners. Any
member of the Board who is nominated
to succeed himself shall be disqualified
from conducting the vote in which he is
a nominee.

(2) Nomination shall be made from the
floor and shall require two seconds.
Any prospective nominee may withdraw
his name from consideration by an oral
statement to that effect.

(d) Officers of the Board. Annually, and as
soon as practicable after appointments have been
made, the members of the Board shall elect a

president, a vice-president, a-nd a

s ecretary treasurer a secretary, and a treasurer .

Statutory Authority 90-139; 90-140; 150B-14.

SECTION .0300 - RULES OF UNETHICAL
CONDUCT

.0303 SOLICITATION OF AUTO
ACCIDENT VICTIMS

(a) In-Person and Telephone Solicitation
Limited. In order to protect the public from

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PROPOSED RULES

misrepresentation, coercion or undue influence, rt
shall be unlawful for a doctor of chiropractic, or
any party acting in his behalf, to initiate direct
personal contact or telephone contact with any
person who has been injured in a motor vehicle
collision, or with any person residing in the
injured person's household, for a period of 90 days
following the collision, if the purpose of initiating
contact is^ in whole or part, to solicit the injured
person to become a patient of the doctor.

(b) Solicitation By Mail Permitted, A doctor of
chiropractic may solicit persons injured in motor
vehicle collisions at any time through the use of
posted communications such as letters, brochures,
information packages and sound or video
recordings. The words "This js an advertisement
for chiropractic services" must appear on the
communication's envelope or mailing container |n
print large enough to be easily read.

Statutory Authority 90-142; 90-154; 90-400.

Notice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Psychology
Board intends to adopt rules cited as 21 NCAC 54
.1609 and .2007.

1 he proposed effective date of this action is April
1. 1994.

1 he public hearing will be conducted at 3:00
p.m. on January 26, 1994 at the Sheraton
Crabtree Hotel, Board Room, Raleigh, NC

IXeason for Proposed Action:

21 NCAC 54 .1609 - set time period for

termination of practice.

21 NCAC 54 .2007 - set supervision requirements

for non-licensees.

(comment Procedures: Comments may be
submitted in writing or in person at the public
hearing or in uriting prior to February 3, 1994 to
Martha Storie, Executive Director, N. C.
Psychology Board, University Hall, Appalachian
State University, Boone, N. C. 28608.

tLditor's Note: These Rules were filed as
temporary adoptions effective December 1, 1993

for a period of 180 days or until the permanent
rule becomes effective, whichever is sooner.

CHAPTER 54 - BOARD OF
PRACTICING PSYCHOLOGISTS

SECTION .1600 - GENERAL
PROVISIONS

.1609 TERMINATION OF PRACTICE

A licensee whose license is suspended or
revoked, an applicant who is notified that he or
she has failed an examination for the second time,
an applicant who is notified that licensure is
denied, or an applicant who discontinues the
application process at any point, including failure
to complete the process within the stipulated time
period, must terminate the practice of psychology
within a two week period and confirm such
termination in writing to the Board.

Statutory Authority G.S. 90-270. 4(h); 90-270.9.

SECTION .2000 - SUPERVISION

.2007 APPLICANTS AND OTHER

NONLICENSED INDIVIDUALS

(a) Applicants and individuals who have yet to
apply shall not practice or offer to practice
psychology without supervision. All activities
comprising the practice of psychology are subject
to review by a supervisor. A minimum of one
hour per week of regularly scheduled face-to-face
individual supervision is required. Supervision
must be provided by an individual who may be
recognized as an appropriate supervisor of
licensees as defined in Rule .2001 of this Section.

(b) An applicant or a nonlicensed individual who
is not practicing or offering to practice psychology
in North Carolina is not required to receive
supervision.

(c) An applicant must keep a written, notarized
supervision contract form on file jn the Board's
office at ajf times. A supervision contract form
documents that either supervision fs required and
being received, or that supervision js not required.

(d) An initial supervision contract form must be
filed along with the application form. A new
supervision contract form is required to be filed
within 30 days of a change in the conditions
specified in the supervision contract form on file
with the Board.

(e) Supervision reports must be submitted at any
time when the supervisor has concerns regarding

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PROPOSED RULES

the supervisee's performance, upon termination of
supervision, and when there is a change in the
conditions specified in the supervision contract
form on file with the Board. Additional
monitoring and reporting to the Board may be
required in cases where previous evaluations or
other information (e.g. reference letters, ethical
complaints, etc.) suggest possible problems jn the
supervisee's competence or adherence to ethical
standards. Additional documentation or an
interview may be required when questions arise
regarding the supervisee's practice due to
information supplied or omitted on supervision
contract forms and reports or when required forms
are not filed with the Board.

(f) Contract and report forms are provided by
the Board.

Statutory Authority G.S. 90-270. 5(c); 90-270.9.

Notice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Certification
Board for Social Work intends to amend rule cited
as 21 NCAC 63 .0501; adopt rules cited as 21
NCAC 63 .0503 - .0509. .0801 - .0809, .0820;
and repeal rule cited as 21 NCAC 63 .0502.

1 he proposed effective date of this action is
March 1. 1994.

1 he public hearing will be conducted at 10:00 -
11:00 a.m. on January 14, 1994 at the Keyes
Management, Inc. , 130 South Church St. ,
Asheboro, NC 27203.

MXeason for Proposed Action:

21 NCAC 63 .0501 - To establish disciplinary

procedures for dealing with ethical violations.

21 NCAC 63 .0502 - To repeal practice and

conduct guidelines due to duplication in Rule

.0501.

21 NCAC 63 .0503 - .0509 - To establish a code

of ethics governing ethical conduct for social work

practice.

21 NCAC 63 .0801 - .0809 - To establish

disciplinary procedures for dealing with ethical

violations.

21 NCAC 63 .0820 - To establish disciplinary

actions in dealing with disciplinary procedures

pursuant to ethical violations.

(comment Procedures: Persons wishing to present
oral data, views or arguments on a proposed rule
may file a notice with the Board at least 10 days
prior to the public hearing at which the person
wishes to speak. Comments should be limited to
five minutes. The address of the Board is P. O.
Box 1043. Asheboro, NC 27204. Written
comments or arguments must be received by the
Board not later than January 14, 1994.

CHAPTER 63 - CERTIFICATION BOARD
FOR SOCIAL WORK

SECTION .0500 - CODE OF ETHICS

.0501 PURPOSE AND SCOPE

A — c e rtifi e d — social — work e r — shall — promot e
professional policies and practic e s which enhance
th e d e liv e r)' of social work s e rvices.

(a) Ethical principles affecting the practice of
social work are rooted in the basic values of
society and the social work profession. The
principal objective of the profession of social work
is to enhance the dignity and well-being of each
individual who seeks its services. It does so
through the use of social work theory and
intervention methods including psychotherapy.

(b) The primary goal of this code is to set forth
principles to guide social workers' conduct in their
profession. Violation of these standards may be
considered gross unprofessional conduct and may
constitute dishonest practice or incompetence in the
practice of social work. Such violations may
result in disciplinary action by the Board.

roles, relationships and
Social workers shall consider all
the principles in the code that bear upon any
situation on which ethical judgment is to be
exercised, and to select a course of action
consistent with the spirit as well as the letter of
this code.

(d) Upon approval of certification, each
applicant shall review the Code of Ethics and
return a signed statement to the Board agreeing to
abide by these standards.

Statutory Authority G. S. 90B-2.

.0502 PRACTICE AND CONDUCT

(a) The social work e r' s primary respon s ibility i s
the welfar e of th e client.

(b) A social work e r shall not discriminat e on th e

professional
responsibilities.

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PROPOSED RULES

basis of age, s ex, race, color, religion, national
origin, socio economic statu s or sexual preference.

{e) — The social worker s hall carry out his/her
profe s sional practice in a responsible manner and
hold him/herself responsible for the quality of
service he/she provides.

fd} The — social — worker mu s t — recognize the

boundaries of his/her competence and the limits of

his/her — methods — and — technique s . The — social

worker does not offer services nor u s e techniques
without having appropriate profe ss ional education
and training.

(e) A social worker acts with integrity in regard
te — colleagues — m — social — work — and — m — other
profession s .

{£) A social — worker does — not lend his/her

professional expertise for unprofessional purposes.
The — s ocial — worker docs — not place him/herself

under — obligation — to persons, groups, ef

organizations — m — ways — net — commensurate — whh
professional values.

{g) — Certified social worker s in the delivery of
private social work s ervices shall not be required
to disclose any information which they may have
obtained — m — rendering — professional — social — work
s ervice s , and which information wa s necessary to
enable them to render s aid s ervices, except as
required by law.

Statutory Authority G. S. 8-53. 7; 90B-2.

.0503 GENERAL PROFESSIONAL
RESPONSIBILITIES

(a) Social workers shall practice only within
their sphere of competence. They shall accurately
represent their abilities, education, training, and
experience. They shall engage in continuing
professional education to maintain and enhance
their competence.

(b) As employees of institutions or agencies,
social workers are responsible for remaining alert
to and attempting to moderate institutional
pressures or policies that conflict with the
standards of their profession. If such conflict
arises, social workers' responsibility shall be to
uphold the ethical standards of their profession.

(c) Social workers shall not, in any of their
capacities, practice, condone, facilitate or
collaborate with any form of discrimination on the
basis of race, sex, sexual orientation, age,
religion, socioeconomic status, or national origin.

(d) Social workers shall practice their profession
in compliance with legal standards.

(e) Social workers shall not engage in settlement
agreements that preclude reporting of ethical

misconduct to the Board.

Statutory Authority G. S. 90B-2.

.0504 RESPONSIBILITIES IN

PROFESSIONAL RELATIONSHIPS

(a) Social workers shall not misuse their
professional relationships sexually, financially or
for any other personal advantage. They shall
maintain this standard of conduct toward all who
are professionally associated with them such as
clients, colleagues, supervisees, employees,
students and research participants.

(b) Social workers shall inform clients of the
extent and nature of services available to them as
well as the limits, right, opportunities and
obligations associated with service which might
affect the client's decision to enter into or continue
the relationship.

(c) Social workers shall obtain consent
(agreement to participate in social work
intervention) from all clients or their legally
authorized representative except when laws require
intervention to insure client's and community's
safety and protection.

(d) Social workers shall not terminate services
except under extraordinary circumstances, giving
careful consideration to factors affecting the
situation and taking care to minimize possible
adverse effects. The social worker who anticipates
the interruption or termination of services to
clients shall give reasonable notification and
provide appropriate referral for continued service.

(e) Social workers shall respect the integrity,
protect the welfare, and maximize
self-determination of clients they serve. They shall
avoid entering treatment relationships in which
their professional judgment will be compromised
by prior association with or knowledge of a client.
Examples include treatment of one's family
members; close friends; associates; employees; or
others whose welfare could be jeopardized by such
a dual relationship.

(f) Social workers shall not initiate, and shall
avoid when possible, personal relationships or dual
roles with current clients, or with any former
clients whose feelings toward them may still be
derived from or influenced by the former
professional relationship.

(g) Social workers shall not engage in sexual
activities with clients.

Statutory Authority G. S. 90B-2.

.0505 RELATIONSHIPS WITH

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PROPOSED RULES

COLLEAGUES

Social workers shall act with integrity in their
relationships with colleagues and other
professionals. They shall know the areas of
competence of other professionals and shall
cooperate with them in serving clients.

(1) The social worker shall treat with respect
and represent accurately the views,
qualifications and findings of colleagues,
and when expressing judgment on these
matters shall do so fairly and through
appropriate channels.

(2) In referring clients, social workers shall
refer to professionals who are recognized
members of their own disciplines and are
competent to carry out the services
required.

(3) If a social worker's services are sought
by an individual who is already receiving
similar services from another
professional, consideration for the client's
welfare shall be paramount. It requires
the social worker to proceed with great
caution, carefully considering both the
existing professional relationship and the
therapeutic issues involved.

(4) Social workers shall accept their
responsibility to provide competent
professional guidance to colleagues,
employees, and students. They shall
foster working conditions that provide
fairness, privacy and protection from
physical or mental harm. They shall
evaluate fairly the performance of those
under their supervision, and share
evaluations with supervisees. They shall
not abuse the power inherent in their
position.

(5) Social workers shall take appropriate
measures to discourage, prevent, expose
and correct unethical or incompetent
behavior by colleagues, but shall take
equally appropriate steps to assist and
defend colleagues unjustly charged with
such conduct.

Statutory Authority G. S. 90B-2.

.0506 REMUNERATION

(a) Financial arrangements shall be explicitly
established and agreed upon by the social worker
and the client in the initial stage of intervention.

(b) Social workers shall not give or receive any
fee or other consideration to or from a third party
for referrals.

(c) Social workers employed by an agency or
clinic and also engaged in private practice shall
conform to agency regulations regarding their dual
role.

(d) Legal measures to collect fees may be taken
if a client does not pay for services as agreed,
provided reasonable notice of such action is given
beforehand.

Statutory Authority G S. 90B-2.

.0507 CONFIDENTIALITY AND RECORD
KEEPING

Social workers shall have a primary obligation to
protect the client's right to confidentiality as
established by law and professional standards of
practice.

(1) Social workers reveal confidential
information to others only with the
informed consent of the client, except in
those circumstances in which not to do so
would violate the law or would result in
clear and imminent danger to the client
or others unless specifically
contraindicated by such situations, clients
shall be informed and written consent
shall be obtained from the client before
confidential information is revealed.

(2) When confidential information is used for
the purpose of professional education,
research, consultation, etc., the identity
of the client shall be concealed.
Presentations shall be limited to material
necessary for the professional purpose.

(3) Social workers shall maintain records
adequate to provide proper diagnosis and
treatment and to fulfill other professional
responsibilities.

Statutory Authority G S. 90B-2.

.0508 PURSUIT OF RESEARCH AND
SCHOLARLY ACTIVITIES

In planning, conducting and reporting a study,
the investigator has the responsibility to make a
careful evaluation of its ethical acceptability,
taking into account the following additional
principles for research with human subjects. To
the extent that this appraisal, weighing scientific
and humane values, suggests a compromise of
ethical principles, the investigator shall seek advice
to protect the right of the research participants.

(1) Social workers shall obtain appropriate
authority to carry out the research and
proper credit shall be given for the

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1810

PROPOSED RULES

research conducted.
An agreement shall

be established

SSI

16}

between the investigator and the research

participant clarifying their roles and

responsibilities.

The rights of an individual to decline to

participate in or withdraw from the

research shall be respected and the

participant shall not be penalized for such

action.

The investigator shall inform the

participant of all the features of the

research that would affect his/her

participation in the study.

Information obtained about the participant

during the course of the study shall be

confidential unless informed consent for

release of information is obtained in

advance.

shall be presented
workers shall not

Research finding
accurately. Social

distort or misrepresent research .

Statutory Authority- G S. 90B-2.

.0509 PUBLIC STATEMENTS

Public statements, announcements of services and
promotional activities of social workers serve the
purpose of providing sufficient information to aid
consumers in making informed judgments and
choices. Social workers shall state accurately,
objectively and without misrepresentation their
professional qualifications, affiliations and
functions as well as those of the institutions or
organizations with which they or their statement
may be associated. They shall correct the
misrepresentations of others with respect to these
matters.

(1) In announcing availability for
professional services, a social worker
shall use his or her name, type and level
of certification and licensure; and may
use highest relevant academic degree
from an accredited institution; specialized
post-graduate training; address and
telephone number; office hours; type of
services provided; appropriate fee
information; foreign languages spoken;
and policy with regard to third-party
payments.

(2) Social workers shall not offer to perform
any services beyond the scope permitted
by law or beyond the scope of their
competence. They shall not engage in
any form of advertising which is false.

fraudulent, deceptive, or misleading.
They shall neither solicit nor use
recommendations or testimonials from
clients.

(3) Social workers shall respect the right and
reputations of professional organizations
with which they are affiliated. They
shall not falsely imply sponsorship or
certification by such an organization.
When making public statements, the
social worker shall make clear which are
personal opinions and which are
authorized statements on behalf of the
organization.

Statutory Authority G S. 90B-2.

SECTION .0800 - DISCIPLINARY
PROCEDURES

.0801 REPORTING COMPLAINTS

(a) All complainants shall be sent (if name and
address are available) a copy of the state's code of
ethics and disciplinary procedures, informing them
of their options for reporting an ethical violation.

(b) There shall be two procedures for reporting
violations:

(1) Informal Reporting Procedure:

(A) Anyone may anonymously or
otherwise communicate a suspected
violation on an informal "report only"
basis. This report shall be submitted
in writing.

(B) After receiving an informal written
complaint, the Board shall contact the
social worker involved, note the
reporting of a violation and outline
the specific ethical standard brought
to question.

(C) Record of the complaint and all
subsequent actions shall be retained in
a separate administrative file and shall
not be considered disciplinary actions,
and shall not be a part of the
licensee's file.

(D) Depending on the number of prior
complaints within a three-year period,
specific follow-up interventions shall
be initiated. Complaints do not have
to involve the same ethical standard.

ill

First Complaint. The social
worker shall be directly contacted
by phone by a member of the
Board, with a follow-up letter.
The specific ethical violations

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PROPOSED RULES

raised by complainant shall be
detailed. The social worker shall
be encouraged to explore issues
that may have led to the

complaint, professional practices,
and social work ethical standards,
and to initiate corrective action if
necessary.
(ii) Second Complaint. The

procedure in Subpart (b)(l)(D)(i)
of this Rule shall be followed, and
the social worker shall be
encouraged to voluntarily develop
an "intervention team" of two
certified social work colleagues.
This team shall work with the
social worker to informally
address complaint implications,
potential professional liabilities,
client impact, and possible
corrective actions. A plan of
action and follow-up reports shall
be submitted to the Board.

(iii) Third Complaint. The procedures
in Subparts Cb)(l)(D)(i) and (ii) of
this Rule are followed, and the
social worker will receive strong
recommendation to establish
supervision or therapeutic
intervention or both for possible
impairment.

(iv) Fourth Complaint. The Board
shall call for whatever
investigation is necessary and may
call for either an informal
conference or hearing.
(2) Formal Reporting Procedure:

(A) The complainant shall submit a formal
written complaint on the Board's form
outlining the specific violation and
identifying the social worker
involved.

(B) The Board shall acknowledge receipt
of the complaint and initiate an
investigation.

(C) The Board shall contact the social
worker involved, note the reporting of
a violation and outline the specific
ethical standard brought to question.

(D) Based on the investigation, if there fs
credible evidence supporting the
charges, a hearing shall be scheduled.
If evidence is not credible the Board
may at its discretion pursue informal
procedures.

IE)

The disciplinary action hearing will
follow the administrative procedures
in Rule .0602 of this Chapter and
G.S. 150B.

The complainant and social worker
shall be informed of the Board's final
filing on the complaint and subsequent
disciplinary actions.

Statutory Authority G.S. 90B-6; 90B-11.

.0802 CONFIDENTIALITY

Every communication, oral or written, made by
or on behalf of any person or entity to the North
Carolina Certification Board for Social Work or to
any person designated by the Board to investigate
matters relating to disciplinary issues, whether by
way of report, complaint, or statement, shall be
treated in a confidential manner, within the
provision of the Public Records Act NCCS 132.

Statutory Authority G.S. 90B-6; 90B-1 1 .

.0803 INVESTIGATION

(a) Upon receipt of a formal complaint, or upon
the Board's own initiative, the North Carolina

Certification Board for Social Work,

its staff
a certified

designee(s) may investigate whether

social worker has violated the Social Work
Certification Act or the Administrative Code of the
Board.

fb) Any board member engaged in the
investigation of a specific case shall not participate
in ffie Board's adjudication of that case.

Statutory Authority G.S. 90B-6; 90B-11.

.0804 NOTICE OF HEARING AND
CHARGES

If an investigation produces any credible
evidence to support the charge, a notice outlining
the charges, date of proposed hearing, location of
hearing, and other information (per G.S. 150B-38)
shall be sent to the social worker. The social
worker shall have the right to file a written
response (per G.S. 150B-38).

Statutory Authority G.S. 90B-6; 90B-11.

.0805 INFORMAL CONFERENCE

The Board may meet fn informal closed session
with a social worker who seeks or agrees to such
a conference in lieu of a formal disciplinary
hearing. Disciplinary action taken against a
licensee as a result of an informal closed session

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PROPOSED RULES

conference and agreed to by the Board and the
social worker shall be binding and a matter of
public record.

Statutory Authority G.S. 90B-6; 90B-1J.

.0806 HEARINGS

General hearings shall be conducted by a
majority of the Board. The Chairperson shall
serve as presiding officer unless he/she is absent or
disqualified, in which case the Vice-Chairperson,
or designee, shall preside.

Statutory Authority G.S. 90B-6; 90B-11.

.0807 DECISION OF THE BOARD

The Board shall notify all parties of jts final
decision in the manner prescribed by G.S.
150B-42.

Statutory Authority G.S. 90B-6; 90B-11.

.0808 SUMMARY SUSPENSION

Regardless of the status of the complaint, the
Board may summarily suspend a social worker's
certification according to the provisions of G.S.
150B-3. If the Board Chairperson believes such
prompt action is required, the Board may
summarily suspend a license by means of a vote
conducted by telephone, formal meeting, or
correspondence. Proceedings for a formal hearing
shall be instituted simultaneously with summary
suspension, with a hearing date not to exceed 30
days from the date of suspension.

Statutory Authority G.S. 90B-6; 90B-11.

.0809 THE PUBLIC RECORD

The Board shall report all disciplinary actions
through the Disciplinary Action Reporting System
(PARS), the Federal Data Bank, and may report
them to any requesting public or private entity.
Disciplinary actions do not include complaints.

Statutory Authority G.S. 90B-6; 90B-11.

.0810 RESERVED FOR FUTURE

CODIFICATION
.08 1 1 RESERVED FOR FUTURE

CODIFICATION
.0812 RESERVED FOR FUTURE

CODIFICATION
.0813 RESERVED FOR FUTURE

CODIFICATION
.0814 RESERVED FOR FUTURE

CODIFICATION
.0815 RESERVED FOR FUTURE

CODIFICATION
.0816 RESERVED FOR FUTURE

CODIFICATION
.0817 RESERVED FOR FUTURE

CODIFICATION
.0818 RESERVED FOR FUTURE

CODIFICATION
.0819 RESERVED FOR FUTURE

CODIFICATION

.0820 DISCIPLINARY ACTIONS

Board disciplinary actions may include the
following:

ill

14]

i5j

Letters of Concern. The Board may
issue a letter of concern to a certified
social worker stating that the Board has
noted misconduct by the social worker.
Examination. The Board may require a
social worker to be examined orally or in
writing regarding his/her social work
skills and knowledge.
Reprimand. Reprimand is a public re-
buke and sanction by the Board for prac-
tice misconduct. A reprimand typically
is given for less severe offenses and may
require specific follow-up actions by the
social worker.

Censure. Censure is an act involving
severe condemnation and a sanction by
the Board for practice misconduct. Cen-
suring js typically for severe offenses and
may require specific follow-up actions by
the social worker.

Probation. Probation is a stay of revoca-
tion or suspension allowing limited prac-
tice within preconditions established by
the Board. Violations of these conditions
can result in revocation.

16}

ill

Suspension. Suspension is the withdraw-
al of privilege to practice for a specific
period of time.

Revocation. Revocation [s the withdraw-
al of privilege to practice as certified
social worker in the State of North Caro-

Statutory Authority G.S. 90B-6; 90B-11.

1813

8:18

NORTH CAROLINA REGISTER

December 15, 1993

RRC OBJECTIONS

1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S.
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d).

ADMINISTRATION

State Employees Combined Campaign

1 NCAC 35 .0103 - Organization of the Campaign

Agency Revised Rule

AGRICULTURE

North Carolina State Fair

2 NCAC 20B .0106 - General

Agency Revised Rule

COMMERCE

Banking Commission

4 NCAC 31 .0305 - Issuance of Certificate of Registration
Agency Re\'ised Rule

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES

Coastal Management

15A NCAC 7H .2002 - Approval Procedures

Agency Responded

No Action
15 A NCAC 7H .2004 - General Conditions

Agency Responded

No Action

Environmental Management

15A NCAC 2D .0518 - Msc Volatile Organic Compound Emissions

Agency Revised Rule
15 A NCAC 2D .0948 - VOC Emissions from Transfer Operations

Agency Revised Rule
15 A NCAC 2L .0103 - Policy

Agency Revised Rule

Rule Returned to Agency

Agency Filed Rule for Codification Over RRC Objection

HUMAN RESOURCES

Aging

RRC Objection
Obj. Removed

11/18/93
11/18/93

RRC Objection
Obj. Removed

09/1 7/93
10/21/93

RRC Objection
Obj. Removed

10/21/93
10/21/93

RRC

Objection

09/17/93

Obj.

Contd

10/21/93

Obj.

Cont d

11/18/93

RRC

Objection

09/17/93

Obj.

Cont d

10/21/93

Obj.

Cont d

11/18/93

RRC Objection

11/18/93

Obj. Removed

11/18/93

RRC Objection

11/18/93

Obj. Removed

11/18/93

RRC Objection

09/17/93

RRC Objection

09/17/93

Obj. Contd

10/21/93

Eff.

11/04/93

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1814

RRC OBJECTIONS

10 NCAC 22G .0505 - Staffing

Agency Revised Rule
10 NCAC 22G .0506 - Congregate Site Requirements

Agency Revised Rule
10 NCAC 22G .0509 - Home-Delivered Meals Standards

Agency Revised Rule
10 NCAC 22G .0510 - Congregate Food Requirements

Agency Revised Rule
10 NCAC 22G .0514 - Administration Requirements

Agency Revised Rule
10 NCAC 22S .0102 - Withdrawal of Area on Aging Designation

Agency Revised Rule

RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed

10/21/93
10/21/93
10/21/93
10/21/93
10/21/93
10/21/93
10/21/93
10/21/93
10/21/93
10/21/93
10/21/93
10/21/93

Children's Services

10 NCAC 41 R .0002 - Administration and Organization
Agency Responded
Rule Returned to Agency
Agency Filed Rule for Codification Over RRC Objection

Facility Services

RRC Objection 07/15/93

Obj. Cont'd 08/20/93

Obj. Cont'd 09/17/93

Eff. 10/01/93

10 NCAC 3H .0108 - Definitions
Agency Revised Rule

RRC Objection
Obj. Removed

10/21/93
10/21/93

Mental Health: General

10 NCAC 14A . 1603 recodified as 141] .0303 - Registered Nurse RRC Objection 11/18/93

Agency Revised Rule Obj. Removed 11/18/93

10 NCAC 14A .1903 recodified as 14V .0603 - Space Requirements RRC Objection 11/18/93

Agency Revised Rule Obj. Removed 11/18/93

10 NCAC 14A .2204 recodified as 14U .0904 - Treatment or Habilitation Plan RRC Objection 11/18/93

Agency Revised Rule Obj. Removed 11/18/93

10 NCAC 14A .2208 recodified as 14V .0908 - Rel Planning /Res /Inpatient Svcs RRC Objection 11/18/93

Agency Revised Rule Obj. Removed 11/18/93

10 NCAC 14A .2304 recodified as 14V .1004 - Testing Services RRC Objection 11/18/93

Agency Revised Rule Obj. Removed 11/18/93

10 NCAC 14A .2404 recodified as 14V .1104 - Invol Admin I Psychotropic Med RRC Objection 11/18/93

Agency Revised Rule Obj. Removed 11/18/93

INSURANCE

Financial Evaluation Division

11 NCAC 11H .0011 - Insolvency or Hazardous Financial Condition
Agency Revised Rule

RRC Objection 1 1 /1 8/93
Obj. Cont'd 11/18/93

Special Services Division

11 NCAC 13 .0318 - Request for Cancellation Notice
Agency Revised Rule

JUSTICE

Criminal Justice Education and Training Standards

RRC Objection 1 1 II 8/93
Obj. Removed 11/18/93

1815

8:18

NORTH CAROLINA REGISTER

December 15, 1993

RRC OBJECTIONS

12 NCAC 9A .0107 - Rule-Making and Administrative Hearing Procedures

Agency Revised Rule
12 NCAC 9B .0101 - Minimum Standards for Criminal Justice Officers

Agency Rexnsed Rule

Private Protective Services

12 NCAC 7D .0108 - Law Enforcement Officers Special Provisions

Sheriffs' Education and Training Standards Commission

12 NCAC 10B .1003 - Basic Law Enforcement Certificate
Agency Revised Rule

LICENSING BOARDS AND COMMISSIONS

Electrolysis Examiners

21 NCAC 19 .0604 - Program Directors

Agency Re\>ised Rule
21 NCAC 19 .0611 - Identification of Students

Agency Revised Rule
21 NCAC 19 .0613 - Student /Teacher Ratio and Equipment

Agency Revised Rule

Foresters

21 NCAC 20 .0020 - Certification of Consulting Foresters

Agency Revised Rule
21 NCAC 20 .0021 - Rejection of Consultant Affidavit

Agency Revised Rule
21 NCAC 20 .0022 - Handling of Complaints

Agency Revised Rule

Plumbing, Heating and Fire Sprinkler Contractors

21 NCAC 50 .0506 - Minor Repairs and Alterations
Agency Revised Rule

Practicing Psychologists

21 NCAC 54 .1605 - Fees
Agency Re\'ised Rule

Refrigeration Examiners

21 NCAC 60 .0101 - Structure of Board

Agency Repealed Rule
21 NCAC 60 .0207 - Requirements for Examination Applicants

Agency Revised Rule

REVENUE

Corporate Income and Franchise Tax

RRC Objection 10/21/93

Obj. Removed 10/21/93

RRC Objection 10/21/93

Obj. Removed 10/21/93

RRC Objection 11/18/93

RRC Objection 11/18/93
Obj. Removed 11/18/93

RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed

10/21/93
11/18/93
10/21/93
10/21/93
10/21/93
11/18/93

09/17/93
10/21/93
09/17/93
10/21/93
09/17/93
10/21/93

RRC Objection 10/21/93
Obj. Removed 10/21/93

RRC Objection 11/18/93
Obj. Removed 11/18/93

RRC Objection 11/18/93

Obj. Removed 11/18/93

RRC Objection 1 1 II 8/93

Obj. Removed 11/18/93

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1816

RRC OBJECTIONS

17 NCAC 5 C .0904 - The Term Employee
Agency Repealed Rule

STATE PERSONNEL

Office of State Personnel

25 NCAC ID .0308 - Salary Increases

Agency Re\>ised Rule
25 NCAC IE .0301 - Sick Leave Credits

Agency Revised Rule
25 NCAC IE .1102 - Maximum Amount

Agency Revised Rule
25 NCAC IE .1105 - Retention of Benefits

Agency Revised Rule

TRANSPORTATION

Departmental Rules

19A NCAC IB .0202 - Contents of Petition

Agency Rexised Rule
19A NCAC IB .0302 - Record of Hearing

Agency- Re\ised Rule

Deputy Secretary - Transit. Rail, and Aviation

19A NCAC 6C .0112- Allowable Project Costs

Agency Revised Rule
19A NCAC 6C .0128 - State Aid to Airports Program Guidance Handbook

Agency Repealed Rule

Director of Administration

RRC Objection
Obj. Removed

10/21/93
10/21/93

RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed

11/18/93
11/18/93
11/18/93
11/18/93
11/18/93
11/18/93
11/18/93
11/18/93

RRC Objection 10/21/93

Obj. Removed 10/21/93

RRC Objection 10/21/93

Obj. Removed 10/21/93

RRC Objection 11/18/93

Obj. Removed 11/18/93

RRC Objection 11/18/93

Obj. Removed 11/18/93

19A NCAC 5B .0101 - Fiscal Section Operations RRC Objection 11/18/93

Agency Revised Rule Obj. Removed 11/18/93

Division of Highways

19A NCAC 2D .0403 - Use of Dust Allaying Materials RRC Objection 10/21/93

Agency Revised Rule Obj. Removed 10/21/93

19A NCAC 2D .0404 - Maintenance Within Municipalities RRC Objection 10/21/93

Agency Re\ised Rule Obj. Removed 10/21/93

19A NCAC 2D . 0405 - Examples of Construction and Maintenance Activities RRC Objection 10/21/93

Agency Revised Rule Obj. Removed 10/21/93

19 A NCAC 2D .0502 - Ticket Conditions RRC Objection 11/18/93

Agency Revised Rule Obj. Removed 11/18/93

19A NCAC 2D .0601 - Permits-Authority, Application and Enforcement RRC Objection 10/21/93

Agency Revised Rule Obj. Removed 10/21/93

19A NCAC 2D .0633 - Denial: Revocation: Refusal/Renew: Appeal: Invalidation RRC Objection 10/21/93

Agency Rexised Rule Obj. Removed 10/21/93

19 A NCAC 2D .0801 - Pre-Qualifying to Bid: Re qualification RRC Objection 09/17/93

No Response from Agency Obj. Contd 10/21/93

Agency Re\ised Rule Obj. Removed 11/18/93

19A NCAC 2D .0802 - Invitation to Bid RRC Objection 09/17/93

1817

8:18

NORTH CAROLINA REGISTER

December 15, 1993

RRC OBJECTIONS

No Response from Agency

Agency Revised Rule
19A NCAC 2D .0803 - Advertisement and Invitations for Bids

No Response from Agency

Agency Revised Rule
19A NCAC 2D .0821 - Return of Bid Bond or Bid Deposit

No Response from Agency

Agency Revised Rule
19A NCAC 2E .0404 - Highway Obstructions Interfering /Traffic /Maintenance

Agency Revised Rule
19A NCAC 2E .0606 - Exceptions to the Policy

Agency Repealed Rule

Obj.

Cont d

10/21/93

Obj.

Removed

11/18/93

RRC

Objection

09/17/93

Obj.

Cont 'd

10/21/93

Obj.

Removed

11/18/93

RRC

Objection

09/17/93

Obj.

Cont 'd

10/21/93

Obj.

Removed

11/18/93

RRC

Objection

10/21/93

Obj.

Removed

10/21/93

RRC

Objection

11/18/93

Obj.

Removed

11/18/93

Division of Motor Vehicles

19A NCAC 3B .0616 - Approval: Com School: Community College Instructors

Agency Revised Rule
19 A NCAC 3B .0620 - Grounds for Revocation or Denial of Certification
19A NCAC 3B .0621 - Denial /Revocation: Company Examiner: Instructor Cert.
19A NCAC 3C .0223 - Registration: Motor Homes: Etc.

Rule Returned to Agency for Failure to Comply with APA
19A NCAC 3C .0436 - Highway Use Tax
19A NCAC 3C .0521 - Taxicab

Agency Revised Rule
19A NCAC 3G .0205 - Issuing of Original Certificate
19A NCAC 31 .0505 - Confidentiality

RRC Objection

11/18/93

Obj. Removed

11/18/93

RRC Objection

11/18/93

RRC Objection

11/18/93

RRC Objection

11/18/93

RRC Objection

11/18/93

Obj. Removed

11/18/93

RRC Objection

11/18/93

RRC Objection

11/18/93

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1818

RULES INVALIDATED BY JUDICIAL DECISION

1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court,
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which
invalidate a rule in the North Carolina Administrative Code.

1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina
Department of Community Colleges and The North Carolina Department of Administration , Respondent and
The University of Southern California, Intervenor-Respondent (92 DOA 0666).

10 NCAC 3H .0315(b) - NURSING HOME PATIENT OR RESIDENT RIGHTS

Dolores O. Nesnow. Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10
NCAC 3H .0315(b) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human
Resources, Division of Facility Services, Licensure Section, Respondent (92 DHR 1192).

10 NCAC 3R .1124(f) - ACCESSIBILITY TO SERVICES

Beecher R. Gray, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10
NCAC 3R .1124(f) void as applied in Britthaven, Inc. d/b/a Britthaven of Morganton, Petitioner v. N.C
Department of Human Resources, Division of Facility Services, Certificate of Need Section, Respondent and
Valdese Nursing Home, Inc., Respondent-Intervenor (92 DHR 1785).

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES

Julian Mann III, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of
Marine Fisheries, Respondent (92 EHR 0820).

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A
NCAC 19A .0202(d)(10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle),
Ste\'en Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina,
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment,
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department
of Environment, Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as
Chief Cotmnunicable Disease Control Section of the North Carolina Department of Environment , Health, and
Natural Resources, Wayne Bobbin Jr. , as Chief of the HIV/STD Control Branch of the North Carolina
Department of Environment, Health, and Natural Resources, Respondents (91 EHR 0818).

1819 8:18 NORTH CAROLINA REGISTER December 15, 1993

CONTESTED CASE DECISIONS

1 his Section contains the full text of some of the more significant Administrative Law Judge decisions
along with an index to all recent contested cases decisions which are filed under North Carolina's
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698.

ACKNt v

CASE
NUMBER

ALJ

DATE OF
DECISION

PUBLISHED DECISION
REGISTER CITATION

ADMINISTRATION

LMS Express, Inc. v. Administration, Div of Purchase & Contract
Stauffer Information Systems v. Community Colleges & Administration
McLaurin Parking Co. v. Administration
Warren H. Arrington Jr. v. Division of Purchase & Contract
Travel, Incorporated v. Administration

ALCOHOLIC BEVERAGE CONTROL COMMISSION

92 DOA 0735

Morgan

06/04/93

92 DOA 0803

West

06/10/93

8:7 NCR 613

92 DOA 1662

Morrison

04/02/93

8:3 NCR 320

93 DOA 0132

West

07/21/93

93 DOA 0362

Nesnow

11/08/93

Alcoholic Beverage Control Comm. v. Ann Oldham McDowell
Curtis Ray Lynch v. Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm. v. Ezra Everett Rigsbee
Alcoholic Beverage Control Comm. v. Partnership, Phillip Owen Edward
Alcoholic Beverage Control Comm. v. Gary Morgan Neugent
Alcoholic Beverage Control Comm. v. Azzat Aly Amer
Alcoholic Beverage Control Comm. v. Kirby Ronald Eldric^e
Alcoholic Beverage Control Comm. v. Gloria Black McDuffie
Alcoholic Beverage Control Comm. v. Larry Isacc Hailstock
Alcoholic Beverage Control Comm. v. Anthony Ralph Cecchini Jr.
Johnnie L. Baker v. Alcoholic Beverage Control Commission
RAMSAC Enterprises, Inc. v. Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm. v. Aubrey Rudolph Wallace
Alcoholic Beverage Control Comm. v. Mermaid, Inc.
Alcoholic Beverage Control Comm. v. Majdi Khalid Wahdan
Cornelius Hines T/A Ebony Lounge v. Alcoholic Beverage Ctl. Comm.
Alcoholic Beverage Control Comm. v. Homer Patrick Godwin Jr.
Alcoholic Beverage Control Comm. v. Wanda Lou Ball
Charles Anthonious Morant v. Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm. v. Billy Fincher McSwain Jr.
Jean Hoggard Askew v. Alcoholic Beverage Control Commission
ABC Comm. v. Partnership /T/A Corrothers Comty Ctr & Private Club
Alcoholic Beverage Control Comm. v. James Elwood Alphin
Alcoholic Beverage Control Comm. v. James William Campbell
Alcoholic Beverage Control Comm. v. Sydner Jan Mulder
Barbara Locklear v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Comm. v. Partnership, T/A Hawk's
Alcoholic Beverage Control Com. v. Thomas Andrew Reid
Zachary Andre Jones v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Comm. v. Mack Ray Chapman
Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm.
William Vernon Franklin & Gene Carroll Daniels v. ABC Commission
Alcoholic Beverage Control Comm. v. Joseph Adu
Alcoholic Beverage Control Comm. v. Citizens Fuel Company
Alcoholic Beverage Control Comm. v. Citizens Fuel Company
Alcoholic Beverage Control Comm. v. Mohammad Salim Pirini
Linda R. Cunningham v. Alcoholic Beverage Control Commission
Charles Edward Hare, Club Paradise v. Alcoholic Beverage Ctl. Comm.
Alcoholic Beverage Control Comm. v. Jerome Hill T/A Corner Pocket
Aleohlic Beverage Control Comm. v. Partnership t/a RJ's Store
Alcoholic Bev. Control Comm. v. Mild & Wild, Inc., Sheila Scholz

Landing

Bistro Enterprises, Inc.
Richard Donald James Jr.
George Oliver O'Neal 1TJ
The Sideline of Wilmington, Inc.

92 ABC 0260

Morgan

04/01/93

92 ABC 0288

Gray

05/18/93

92 ABC 0702

West

07/30/93

92 ABC 0978

Gray

05/28/93

92 ABC 1086

Becton

03/22/93

92 ABC 1149

Reilly

09/01/93

92 ABC 1153

Chess

04/26/93

92 ABC 1476

West

05/26/93

92 ABC 1483

Reilly

04/07/93

92 ABC 1690

Morgan

06/29/93

92 ABC 1735

Chess

05/07/93

93 ABC 0002

Morrison

07/02/93

93 ABC 0047

Gray

05/28/93

93 ABC 0076

Gray

08/04/93

93 ABC 0087

Becton

07/06/93

8:9 NCR 785

93 ABC 0118

Morrison

08/04/93

93 ABC 0125

Reilly

05/13/93

93 ABC 0182

Nesnow

07/29/93

93 ABC 0232

Chess

07/20/93

93 ABC 0239

Gray

08/26/93

93 ABC 0255

West

09/10/93

93 ABC 0318

Reilly

07/22/93

93 ABC 0326

Gray

08/26/93

93 ABC 0327

Gray

08/09/93

93 ABC 0354

Morgan

11/10/93

8:17 NCR 1712

93 ABC 0395

West

09/14/93

93 ABC 0407

Becton

10/18/93

93 ABC 0408

Gray

11/01/93

93 ABC 0421

West

09/13/93

93 ABC 0423

Gray

09/17/93

93 ABC 0430

Reilly

10/07/93

93 ABC 0431

Nesnow

09/01/93

93 ABC 0433

Morgan

11/01/93

8:16 NCR 1553

93 ABC 0462

Becton

10/27/93

93 ABC 0570

Reilly

09/17/93

93 ABC 0601

Nesnow

10/28/93

8:16 NCR 1560

93 ABC 0611

West

10/12/93

93 ABC 0613

West

10/11/93

93 ABC 0616

West

10/13/93

93 ABC 0633

Morrison

11/03/93

93 ABC 0644

Gray

08/10/93

93 ABC 0672

Gray

11/23/93

93 ABC 0860

Mann

09/29/93

93 ABC 1475

Nesnow

03/23/93

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1820

CONTESTED CASE DECISIONS

AGENCY

COMMERCE

Lester Moore v. Weatherization Assistance Program

CRIME CONTROL AND PUBLIC SAFETY

George W. Paylor v. Crime Victims Compensation Comm.
Steven A. Barner v. Crime Victims Compensation Comm.
Anthony L. Hart v. Victims Compensation Comm.
Jennifer Ayers v. Crime Victims Compensation Comm.
Janie L. Howard v. Crime Victims Compensation Comm.
Isabelle Hyman v. Crime Victims Compensation Comm.
James G. Pellom v. Crime Control & Public Safety
Norman E. Brown v. Victims Compensation Commission
Moses H. Cone Mem Hosp v. Victims Compensation Comm.
David & Jane Spano v. Crime Control & Public Safety
Phillip Edward Moore v. Crime Control & Public Safety
Norma Jean Purkett v. Crime Victims Compensation Comm.
Sheila Carter v. Crime Control and Public Safety
John Willie Leach v. Crime Victims Compensation Comm.
Nellie R. Mangum v. Crime Victims Compensation Comm.
Constance Brown v. Crime Victims Compensation Comm.
Susan Coy v. Crime Victims Compensation Commission

ENVIRONMENT. IIEAJTH. AND NATURAL RESOURCES

Charles L. Wilson v. Environment, Health, & Natural Resources
J. Bruce Mulligan v. Environment, Health, & Natrual Resources
Michael D. Barnes v. Onslow Cty Hlth & Environment and EHR
William E. Finck v. Environment, Health, & Natural Resources
Utley C. Stallings v. Environment, Health, & Natural Resources
Dora Mae Blount on behalf of Joseph T. Midgette v. Hyde Cty

Bd/Commissioners. Hyde Cty Bd/Health, & Environment,

Health, & Natural Resources
A.J. Ballard Jr.. Tire & Oil Co., Inc. v. Env., Health, & Nat. Res.
Safeway Removal, Inc. v. Environment, Health, & Natural Res.
White Oak Chapter of the Izaak Walton League, Inc., and

National Parks and Conservation Association, Inc. v.

Division of Solid Waste Management, EHR and Haywood County
Southchem, Inc. v. Environment, Health, & Natural Resources
Elizabeth City/Pasu,uotank Cty Mun Airport Auth v. EHNR
W.E. Moulton & Wife, Evelyn Moulton v. Macon County Health Dept.
Interstate Brands Corp & Donald Leffew v. Env., Health, & Nat. Res.
Service Oil Company v. Environment, Health, &. Natural Resources
Interstate Brands Corp & Donald Letfew v. Env., Health, & Nat. Res.
Residents of Camm & Shell v. Health Environmental - Septic Tank Div.
City of Salisbury v. Environment, Health, & Natural Resources
Willie M. Watford v. Hertford Gates District Health Department
Standard Speciality Contractors, Inc. v. EHNR
Shawqi A. Jaber v. Environment, Health, & Natural Resources
McLeod Leather & Belting Co., Inc. v. Env., Health, & Natural Res.
Angela Power, Albert Power v. Children's Special Health Svcs.
Rayco Utilities, Inc. v. Environment, Health, & Natural Resources
Erby Lamar Grainger v. Environment, Health, & Natural Resources
Mustafa E. Essa v. Environment, Health, & Natural Resources
A.J. Holt v. Public Water Supply Section, Div. of Environmental Health
Charlie Garfield McPherson Swine Farm v. Env., Health, &. Nat. Res.
Keith Cutler, Kathryn Cutler v. Environment, Health, & Natural Res.
Rosetta Brimage, Vanessa Pack v. Env. Health of Craven County
R.L. Stowe Mills, Inc. v. Environment, Health, &. Natural Resources
O.C. Stafford/Larry Haney v. Montgomery Cty. Health Dept.
Patricia Y. Marshall v. Montgomery Cty Health Dept. & EHR
Fred M. Grooms v. Environment, Health, &. Natural Resources
Bobby Anderson v. Environment, Health, & Natural Resources

CASE
NUMBER

ALJ

93 COM 0105 Gray

DATE OF

DECISION

03/08/93

91 CPS 12S6

Morgan

04/27/93

92 CPS 0453

Nesnow

06/01/93

92 CPS 0937

Chess

03/01/93

92 CPS 1195

Reilly

03/19/93

92 CPS 17S7

Reilly

03/26/93

92 CPS 1807

Morrison

05/24/93

93 CPS 0034

Gray

05/05/93

93 CPS 0141

West

07/07/93

93 CPS 0152

Nesnow

04/02/93

93 CPS 0160

Nesnow

07/30/93

93 CPS 0169

Nesnow

05/20/93

93 CPS 0205

West

08/27/93

93 CPS 0249

Morgan

08/25/93

93 CPS 0263

Morrison

05/20/93

93 CPS 0303

Morrison

06/08/93

93 CPS 0351

Reilly

05/24/93

93 CPS 0623

Reilly

09/22/93

91 EHR 0664

Morgan

03/23/93

91 EHR 0773

West

07/13/93

91 EHR 0825

Morgan

06/21/93

92 EHR 0040

Gray

06/14/93

92 EHR 0062

Gray

03/15/93

92 EHR 0400

Gray

10/15/93

92 EHR 0754

Nesnow

08/30/93

92 EHR 0826

West

03/12/93

92 EHR 0881

West

09/14/93

92 EHR 0925

Chess

11/08/93

92 EHR 1140

Gray

04/13/93

92 EHR 1144

Morgan

11/15/93

92 EHR 1201*"

Reilly

08/12/93

92 EHR 1205

Reilly

05/27/93

92 EHR 1224*"

Reilly

08/12/93

92 EHR 1462

Morrison

08/25/93

92 EHR 1472

Morrison

04/22/93

92 EHR 1600

Chess

03/24/93

92 EHR 1660

Reilly

05/21/93

92 EHR 1784

Becton

07/07/93

93 EHR 0003

Morgan

10/11/93

93 EHR 0008

Becton

03/24/93

93 EHR 0063

Morrison

09/17/93

93 EHR 0071

Reilly

06/21/93

93 EHR 0146

Gray

03/29/93

93 EHR 0168

West

10/25/93

93 EHR 0181

Reilly

07/23/93

93 EHR 0185

Morrison

10/20/93

93 EHR 0206

Nesnow

05/20/93

93 EHR 0219

Morrison

08/11/93

93 EHR 0224

Gray

06/07/93

93 EHR 0252

Gray

10/22/93

93 EHR 0276

West

08/27/93

93 EHR 0299

Reilly

06/07/93

PUBLISHED DECISION
REGISTER CITATION

8:3 NCR 327
8:10 NCR 862

8:12 NCR 1171

8:1 NCR 83

8:15 NCR 1503

8:10 NCR 870

8:11 NCR 996

8:12 NCR 1176

* Consolidated cases.

1821

8:18

NORTH CAROLINA REGISTER

December 15, 1993

CONTESTED CASE DECISIONS

AGENCY

Shell Bros. Dist., Inc. v. Environment, Health, &. Natural Resources

Fred C. Gosnell & wife, Patricia T. Gosnell v. Env., Health, & Nat. Res.

Holding Bros., Inc. v. Environment, Health, &. Natural Resources

Tony Tomson, Diane Clase &. William J. Stevenson v. EHR

Tony Tomson, Diane Clase & William J. Stevenson v. EHR

Hamilton Beach/Proctor-Silex, Inc. v. Environment, Health, & Natrl Res

Tony Worrell v. Environment, Health. & Natural Resources

L. Terry Fuqua v. Environment, Health, & Natural Resources

Seth B. Gaskill Jr. v. N.C. Coastal Resources Commission

Richaid L. Goodman v. Environment, Health, & Natural Resources

Monroe Gaskill v. DEHNR-Div. of Coastal Management

Lanny Clifton, Southwind Dev., Co. v. Div. of Environmental Mgmt.

Blue Ridge Env. Defense League, Inc. v. Env., Health, & Natrl Res

HUMAN RELATIONS COMMISSION

Human Relations Comm. on behalf of Tyrone Clark v. Myrtle Wilson
Human Relations Comm. on behalf of Marsha Crisco v. Hayden Morrison

CASE

DATE OF

NUMBER

ALJ

DECISION

93 EHR 0308

Becton

05/18/93

93 EHR 0340

Becton

08/11/93

93 EHR 0380

Nesnow

08/03/93

93 EHR 0466* 12

Reilly

11/30/93

93 EHR 0467* 12

Reilly

11/30/93

93 EHR 0477

Reilly

06/29/93

93 EHR 0587

Morgan

11/08/93

93 EHR 0624

Reilly

11/08/93

93 EHR 0635

Nesnow

11/18/93

93 EHR 0783

Reilly

11/24/93

93 EHR 0802

Chess

10/13/93

93 EHR 0848

Becton

10/20/93

93 EHR 0862

Nesnow

10/11/93

92 HRC 0560

93 HRC 0167

Becton
Reilly

09/07/93
08/18/93

PUBLISHED DECISION
REGISTER CITATION

8:11 NCR 1001

:13 NCR 1287
:12 NCR 1168

HUMAN RESOURCES

O.C. Williams v. Human Resources

Ronald Terry Brown v. Human Resources

Dermis K. King v. Human Resources

Cathy Harris, A/K/A Cathy D. Grubb v. Human Resources

Raymond L. Griffin v. Human Resources

O.C. Williams v. Human Resources

Michael L. Ray v. Human Resources

Randy Chambliss v. Human Resources

Melvin White v. Human Resources

Joseph R. Kavaliauskas Jr. v. Human Resources

Larry D. Boyd v. Human Resources

Jefferson D. Boylen v. Human Resources

Jeffery D. Williams v. Human Resources

Jerry L. Summers v. Human Resources

Samuel E. Massenberg Jr. v. Human Resources

William A. Dixon v. Human Resources

Gregory L. Washington v. Human Resources

Edwin Clarke v. Human Resources

Dwayne Allen v. Human Resources

Edwin Ivester v. Human Resources

Connie E Epps, Otis Junior Epps v. Human Resources

Tyrone Aiken v. Human Resources

Everett M. Eaton v. Human Resources

Eugene Johnson v. Human Resources

Edward E. Brandon v. Human Resources

James Sisk Jr. v. Human Resources

Darrell W. Russell v. Human Resources

John Henry Byrd v. Human Resources

Michelle D. Mobley v. Human Resources

Gus W. Long Jr. v. Human Resources

Robert E. Watson v. Human Resources

Byron Christopher Williams v. Human Resources

Elijah G. Deanes v. Human Resources

James W. Bell v. Human Resources

Charles W. Stall Jr. v. Human Resources

Eric Stanley Stokes v. Human Resources

Clayton L. Littleton v. Human Resources

Frank E. Johnson v. Human Resources

David Rollins v. Human Resources

Willie Sam Brown v. Human Resources

Lyndell Greene v. Human Resources

Charles Swann v. Human Resources

Joe B. Reece v. Human Resources

Michael Anthony Dean v. Human Resources

Gregory W Alford v. Human Resources

Leroy Snuggs v. Human Resources

James P. Miller lU v. Human Resources

91 CSE 0036* 2

Morgan

03/30/93

91 CSE 0249

Morgan

05/17/93

91 CSE 1122

Morgan

07/28/93

91 CSE 1131

Morgan

08/24/93

91 CSE 1148

Morgan

08/24/93

91 CSE 1 158*-

Morgan

03/30/93

91 CSE 1173

Morgan

05/17/93

91 CSE 1187

Morgan

04/28/93

91 CSE 1192

Morgan

05/17/93

91 CSE 1204

Morgan

07/29/93

91 CSE 1214

Morgan

08/24/93

91 CSE 1217

Morgan

05/17/93

91 CSE 1231

Morgan

04/28/93

91 CSE 1234

Morgan

07/28/93

91 CSE 1249

Morgan

05/17/93

91 CSE 1277

Morrison

03/04/93

92 CSE 0075

Morgan

04/01/93

92 CSE 0129

Morgan

05/17/93

92 CSE 0196

Morgan

03/31/93

92 CSE 0268

Nesnow

03/30/93

92 CSE 1182

Reilly

07/22/93

92 CSE 1217

Gray

06/17/93

92 CSE 1221

Reilly

07/27/93

92 CSE 1229

Nesnow

11/16/93

92 CSE 1237

Gray

04/16/93

92 CSE 1238

Reilly

11/17/93

92 CSE 1249

Becton

04/20/93

92 CSE 1250

Reilly

06/04/93

92 CSE 1256

Nesnow

04/15/93

92 CSE 1263

Gray

08/16/93

92 CSE 1265

Reilly

05/06/93

92 CSE 1270

Nesnow

04/26/93

92 CSE 1273

Nesnow

11/17/93

92 CSE 1311

Nesnow

05/10/93

92 CSE 1313

Mann

07/06/93

92 CSE 1316* 5

Reilly

03/25/93

92 CSE 1317

Morrison

09/02/93

92 CSE 1326

Reilly

08/16/93

92 CSE 1334

Morrison

05/06/93

92 CSE 1338

Morrison

09/15/93

92 CSE 1346

Nesnow

04/16/93

92 CSE 1347

West

09/16/93

92 CSE 1355

Mann

10/12/93

92 CSE 1356

Morrison

08/13/93

92 CSE 1358

Gray

10/18/93

92 CSE 1360

Morrison

04/15/93

92 CSE 1361

Gray

04/16/93

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1822

CONTESTED CASE DECISIONS

AGENCY

Herbert H. Fordham v. Human Resources
Jack Dulq v. Human Resources
Jesse B. Williams v. Human Resources
Johnny Victor Debity v. Human Resources
Larry L. Crowder v. Human Resources
Carlos Bernard Davis v. Human Resources
Ocie C. Williams v. Human Resources
Terra nee Freeman v. Human Resources
Floyd Exeell Stafford v. Human Resources
Timothy Brian Ellerv, Human Resources
Charles S. Ferrer v. Human Resources
Ronald H. Lockley v. Human Resources
Rene Thomas Rittenhouse v. Human Resources
Thomas Edward Williamson v. Human Resources
Roy Chester Robinson v. Human Resources
Lvnwood McCHnton v. Human Resources
Timothy Scott Long v. Human Resources
David W. Williams v. Human Resources
William E. Ingram v. Human Resources
Harold R. Pledger v. Human Resources
Carl Beard v. Human Resources
Henry Alston Jr. v. Human Resources
Gary Lewis Doster v. Human Resources
Raymond L. Head v. Human Resources
Mark R. Charles v. Human Resources
Michael W. Bentley v. Human Resources
Robert D. Knoll Jr. v. Human Resources
Dale Robert Stuhre v. Human Resources
James T. Carter Jr. v. Human Resources
Tommy Malone v. Human Resources
James C. Dixon Jr. v. Human Resources
Timothy R. Currence v. Human Resources
W'ardell Walker v. Human Resources
Wallace M. Cooper v. Human Resources
Jarvis N. Price v. Human Resources
Thomas L. Yates v. Human Resources
Cleamce Ray Taylor v. Human Resources
Robert E. Tarlton Sr. v. Human Resources
Rodney Devard Clemons v. Human Resources
James A. Coleman v. Human Resources
Lee Richard Jones v. Human Resources
Romeo F Skapple v. Human Resources
Terrial W. Mayberry v. Human Resources
Jeffrey L. Garrett v. Human Resources
Edward Kirk v. Human Resources
William C. Hubbard v. Human Resources
William Michael Przybysz v. Human Resources
Kevin Keith Wit more v. Human Resources
Edward Fitch v. Human Resources
David Robinette v. Human Resources
Kit C. Elmore v. Human Resources
Brian C. Gilmore v. Human Resources
Philip S. Piercy v. Human Resources
Anthony McLaughlin v. Human Resources
Johnny W. Cooke v. Human Resources
Roland L. Essaffv. Human Resources
Isaac Maxwell v. Human Resources
Donald J. Ray v. Human Resources
Barbara A. Chaperon v. Human Resources
Kenneth Eugene Johnson v. Human Resources
Derrick Carter v. Human Resources
Charles Wayne Pierce v. Human Resources
Gregory L. Vernoy v. Human Resources
Donna G. Knotts v. Human Resources
Robert Jerome Sutton v. Human Resources
Donald R. Williams v. Human Resources
McKinley Clyburn v. Human Resources
Henry L. Taylor v. Human Resources

CASE

DATE OF

NUMBER

■ M..I

DECISION

92 CSE

1362

Nesnow

07/19/93

92 CSE

1374

Gray

07/16/93

92 CSE

1389

Nesnow

10/12/93

92 CSE

1393

Mann

11/15/93

92 CSE

1396

Reilly

04/15/93

92 CSE

1404

Reilly

04/15/93

92 CSE

1405

Mann

06/25/93

92 CSE

1411

Mann

06/07/93

92 CSE

1412

Reilly

08/31/93

92 CSE

1414

Reilly

04/20/93

92 CSE

1416

Mann

04/15/93

92 CSE

1418

Nesnow

04/20/93

92 CSE

1421

Nesnow

04/20/93

92 CSE

1422

Reilly

04/20/93

92 CSE

1423

Reilly

04/15/93

92 CSE

1424

Reilly

09/15/93

92 CSE

1445

Becton

06/29/93

92 CSE

1448

Nesnow

07/19/93

92 CSE

1450

Reilly

04/15/93

92 CSE

1455

Morrison

05/20/93

92 CSE

1459

Reilly

09/08/93

92 CSE

1460

Becton

06/29/93

92 CSE

1461

Morrison

10/21/93

92 CSE

1510

Mann

11/18/93

92 CSE

1511

Becton

11/17/93

92 CSE

1512

Nesnow

06/09/93

92 CSE

1515

Nesnow

11/17/93

92 CSE

1516

Reilly

05/11/93

92 CSE

1517

Mann

08/31/93

92 CSE

1520

Mann

05/07/93

92 CSE

1522

Becton

05/11/93

92 CSE

1523

Reilly

09/09/93

92 CSE

1524

Reilly

10/12/93

92 CSE

1527

Reilly

05/11/93

92 CSE

1531

Morrison

05/12/93

92 CSE

1535

Gray

05/10/93

92 CSE

1538

Morrison

11/18/93

92 CSE

1536

Gray

05/17/93

92 CSE

1539

Gray

05/10/93

92 CSE

1540

Reilly

05/11/93

92 CSE 1541

Reilly

09/08/93

92 CSE

1545

Gray

04/26/93

92 CSE

1546

Reilly

10/12/93

92 CSE

1557

Gray

04/22/93

92 CSE

1560

Gray

06/29/93

92 CSE

1562

Mann

05/12/93

92 CSE

1565

Becton

07/23/93

92 CSE

1566

Reilly

11/01/93

92 CSE

1572

Reilly

05/11/93

92 CSE

1573

Mann

07/14/93

92 CSE

1575

Gray-

07/16/93

92 CSE

1576

Gray

04/26/93

92 CSE

1577

Gray

07/16/93

92 CSE

15S2

Gray

06/29/93

92 CSE 1585

Becton

05/11/93

92 CSE

1588

Morrison

07/26/93

92 CSE

1589

Reilly

04/26/93

92 CSE

1592

Mann

05/19/93

92 CSE

1593

Mann

10/13/93

92 CSE

1594

Reilly

11/01/93

92 CSE 1595

Gray

11/17/93

92 CSE

1596

Morrison

07/14/93

92 CSE

1610

Gray

11/09/93

92 CSE

1611

Morrison

07/16/93

92 CSE

1618

Chess

10/12/93

92 CSE

1622

Nesnow

08/04/93

92 CSE

1623

Morrison

05/20/93

92 CSE

1624

Mann

09/15/93

PUBLISHED DECISION
REGISTER CITATION

1 82 3

8:18

NORTH CAROLINA REGISTER

December 15, 1993

CONTESTED CASE DECISIONS

AGENCY

Tony Thorpe v. Human Resources

Jeffery D. Williams v. Human Resources

Ronald Sowell v. Human Resources

Billy Smith v. Human Resources

Rawn Weigel v. Human Resources

Anthony Curry v. Human Resources

John G. Williams v. Human Resources

Larry W. Golden v. Human Resources

William J. Carter v. Human Resources

Mark W. Dean v. Human Resources

Linda D. McDonald v. Human Resources

Tyrone Thomas v. Human Resources

Rilton E. May v. Human Resources

Joe K. Martin v. Human Resources

Eric Stanley Stokes v. Human Resources

Erskin J. Thompson v. Human Resources

Larry Thompson v. Human Resources

Billie J. Smith v. Human Resources

Patrick Floyd v. Human Resources

James Eric Frost v. Human Resources

Dennis W. Nolan v. Human Resources

Eric L. Garland v. Human Resources

Ira Alston Jr. v. Human Resources

Elvis Bernard Telfair v. Human Resources

Ronald G. Bolden v. Human Resources

Rodney H. Allen, MD v. Human Resources

Donnell E. Byrd v. Human Resources

Marvin Holley v. Human Resources

Eddie Short v. Human Resources

Michael Tywan Marsh v. Human Resources

Leroy Jones v. Human Resources

Antonio M. Townsend v. Human Resources

Kevin J. Close v. Human Resources

Norman Gatewood v. Human Resources

Thadius Bonapart v. Human Resources

Ronald Norman v. Human Resources

Joseph Eric Lewis v. Human Resources

Ronald Dean Lowery v. Human Resources

Tamera S. Hatfield v. Human Resources

Michael Wayne Bryant v. Human Resources

James E. Blakney v. Human Resources

E. Burt Davis Jr. v. Human Resources

Nelson Fowler Jr. v. Human Resources

Oswinn Blue v. Human Resources

Charles E. Whiteley v. Human Resources

Kelvin D. Jackson v. Human Resources

Linwood Staton v. Human Resources

Anthony Watson v. Human Resources

Eugene Polk v. Human Resources

Steve R. Tallent v. Human Resources

Charles A. Morgan v. Human Resources

Glenda K. Hollifield v. Human Resources

Quinton Brickhousev. Human Resources

Kenneth W. Williams v. Human Resources

Charles Thompson Jr. v. Human Resources

Barbara W. Catlett v. Human Resources

Laurel Langford v. Human Resources

Ida Diane Davis v. Human Resources

Hatsuko Klein v. Human Resources

Karen Mullins Martin v. Human Resources

Ora Lee Brinkley v. David T. Flaherty, Secretary of Human Resources

Mary McDuffie v. Human Resources Child Development

Leon Barbee v. Human Resources

Carrolton of Dunn, Inc. v. Human Resources

Dialysis Care of North Carolina, Inc., d/b/a Dialysis Care of
Cumberland County v. Human Resources, Division of Facility
Services, Certificate of Need Section, and Bio-Medical
Applications of Fayetteville d/b/a Fayetteville Kidney Center,

CASE

DATE OF

NUMBER

ALJ

DECISION

92 CSE 1625

Chess

07/15/93

92 CSE 1626

Mann

05/19/93

92 CSE 1627

Reilly

07/19/93

92 CSE 1629

Reilly

03/25/93

92 CSE 1630

Mann

11/18/93

92 CSE 1631

Reilly

03/25/93

92 CSE 1632

Mann

08/10/93

92 CSE 1633

Reilly

03/25/93

92 CSE 1637

Nesnow

05/19/93

92 CSE 1638

Reilly

07/15/93

92 CSE 1639

Gray

10/19/93

92 CSE 1640

Mann

07/22/93

92 CSE 1642

Morgan

07/29/93

92 CSE 1650

Reilly

09/10/93

92 CSE 1652* 3

Reilly

03/25/93

92 CSE 1653

Gray

11/17/93

92 CSE 1655

Reilly

07/22/93

92 CSE 1656

Gray

07/23/93

92 CSE 1663

Reilly

05/20/93

92 CSE 1669

Mann

11/18/93

92 CSE 1670

Morrison

06/25/93

92 CSE 1671

Mann

07/22/93

92 CSE 1703

Becton

06/16/93

92 CSE 1704

Reilly

09/15/93

92 CSE 1706

Mann

06/25/93

92 CSE 1707

Morrison

11/18/93

92 CSE 1712

Chess

10/22/93

92 CSE 1713

Mann

06/08/93

92 CSE 1714

West

07/15/93

92 CSE 1716

Gray

06/17/93

92 CSE 1718

Gray

06/17/93

92 CSE 1721

Chess

08/30/93

92 CSE 1727

Chess

08/30/93

92 CSE 1728

Chess

10/22/93

92 CSE 1740

Chess

09/21/93

92 CSE 1746

Chess

10/14/93

92 CSE 1748

Becton

08/02/93

92 CSE 1771

West

07/15/93

92 CSE 1772

Chess

08/30/93

92 CSE 1773

Chess

10/22/93

92 CSE 1779

Nesnow

05/13/93

92 CSE 1780

Gray

11/17/93

93 CSE 0050

Chess

10/18/93

93 CSE 0073

Chess

08/03/93

93 CSE 0183

Becton

11/10/93

93 CSE 0221

West

08/04/93

93 CSE 0250

Nesnow

08/13/93

93 CSE 0396

Nesnow

08/04/93

93 CSE 0437

Chess

08/11/93

93 CSE 0448

West

10/29/93

93 CSE 0518

West

11/09/93

93 CSE 0545

West

10/11/93

93 CSE 0576

Gray

11/17/93

93 CSE 0590

Reilly

10/18/93

93 CSE 0696

Morrison

09/23/93

92 DCS 0577

West

03/15/93

92 DCS 1181

Gray

05/04/93

92 DCS 1200

Gray

03/29/93

92 DCS 1271

Reilly

05/05/93

92 DCS 1783

West

08/04/93

92 DHR 0608

Chess

08/27/93

93 DHR 0651

Becton

09/10/93

92 DHR 0658

Morrison

04/30/93

92 DHR 1101

Morgan

07/26/93

92 DHR 1 109*"

Morgan

06/22/93

PUBLISHED DECISION
REGISTER CITATION

8:5 NCR 441

8:4 NCR 392
8:8 NCR 687

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1824

CONTESTED CASE DECISIONS

AGENCY

W'ehb-Loha/ichan-Melton Rentals. Bio-Medical Applications
of North Carolina. Inc.. d/b/a BMA of Raeford and Webb-
Lohaichan Rentals

Dialysis Care of North Carolina. Inc., d/b/a Dialysis Care of
Cumberland County v. Human Resources, Division of Facility
Services, Certificate of Need Section, and Bio-Medical
Applications of Fayette\ ille d/b/a Fayetteville Kidney Center,
W'ebb-Lohaichan-Melton Rentals, Bio-Medical Applications
of North Carolina, Inc.. d/b/a BMA of Raeford and W'ebb-
Loha.'ichan Rentals

Bio-Medical Applications of North Carolina, Inc., d/b/a BMA
oi Raeford. W'ebb-Lohaichan-Melton Rentals. Bio-Medical
Applications of North Carolina. Inc.. d/b/a BMA of Fayetteville
J "b a Favetteville Kidney Center and W'ebb-Lohaichan Rentals
v. Human Resources, Division of Facility Services, Certificate of
Need Section and Dialysis Care of North Carolina, Inc., d/b/a
Dialysis Care of Hoke County

Renal Care of Rocky Mount, Inc. v. Human Resources, Division of
Facility Services, Certificate of Need Section, and Bio-Medical
Applications of North Carolina. Inc., d/b/a BMA of Tarboro,
Rocky Mount Nephrology Associates, Inc., Bio-Medical
Applications of North Carolina, Inc., d/b/a BMA of Rocky Mount
d/b/a Rocky Mount Kidney Center, and Rocky Mount Kidney Center
Associates

James H. Hunt Jr. v. Division of Medical Assistance

Barbara Jones v. Human Resources

Joyce P. Williams v. Human Resources

Snoopy Day Care. Diane Hamby v. Child Day Care Licensing

Cynthia Reed v. Human Resources

The Neighborhood Center v. Human Resources

Helm's Rest Home. Ron J. Schimpf/Edith H. Wilson v. Human Resources

Jo Ann Kinsey v. NC Memorial Hospital Betty Hutton, Volunteer Svc

Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc.

Betty Butler v. Human Resources

Wayne Sanders and Brenda Sanders v. Human Resources

Britthaen, Inc. v. Human Resources &. Valdese Nursing Home, Inc.

Samuel Benson v. Office of Admin. Hearings for Medicaid

James W. McCall, Alice V McCall v. Human Resources

Vernice WTiisnant v. Human Resources

Nell Brooks v. Child Day Care Section, Cherokee Cty Dept/Social Svcs

Cabarrus Cty Dept. of Social Svcs. v. Human Resources

Hannah F. Tonkel %'. Human Resources

Fannie Lewis v. Human Resources

Human Resources, Div. of Child Development v. Susan Amato

Katie Kelly v. Human Resources

Venola Hall, Agape Day Care v. Human Resources

Christopher Durrer, Wilson Memorial Hospital v. Human Resources

Darryl A. Richardson v. Human Resources

Home Health Prof.. Barbara P. Bradsher. Admin v. Human Resources

Sandra Gail Wilson v. Child Abuse/Neglect, Div. of Child Development

Thomas M. Moss v. Human Resources

Frank S. &. Susie R. Wells v. New Hanover Cty. Dept of Social Svcs.

CASE

MMKI.R

ALJ

DATE OF
DECISION

PUBLISHED DECISION
REGISTER CITATION

92 DHR 1 1 10*" Morgan 06/22/93

92 DHR 1116* Morgan 06/22/93

92 DHR 1120

Gray

06/18/93

92 DHR

1145

Beclon

05/13/93

92 DHR

1192

Nesnow

04/02/93

92 DHR

1275

Gray

03/15/93

92 DHR

1320

Morgan

05/21/93

92 DHR

1329

Chess

05/10/93

92 DHR

1375

Chess

08/02/93

92 DHR

1604

Reilly

05/10/93

92 DHR

1612

Chess

03/08/93

92 DHR

1613

Chess

03/08/93

92 DHR

1614

Chess

03/09/93

92 DHR

1699

Reilly

06/07/93

92 DHR

17S5

Grav

09/17/93

93 DHR 0010

Bee ton

03/11/93

93 DHR 0102

Morgan

10/05/93

93 DHR 0332

Morgan

09/23/93

93 DHR 0343

Bee ton

11/29/93

93 DHR 0373

Morgan

07/20/93

93 DHR 0378

Nesnow

09/10/93

93 DHR 0379

Gray

06/28/93

93 DHR 0418

Morgan

08/26/93

93 DHR 0441

Chess

07/26/93

93 DHR 0535

Mann

10/22/93

93 DHR 0566

Chess

09/17/93

93 DHR 0679

Beeton

09/30/93

93 DHR 0737

Chess

09/23/93

93 DHR 0782

Nesnow

09 '09/93

93 DHR 0864

Chess

11/05/93

93 DHR 0922

Nesnow

11/08/93

8:8 NCR 687

:5 NCR 443
:3 NCR 313

8:7 NCR 632

8:18 NCR 1832

INSURANCE

Carolyn M. Hair v. St Employees Comprehensive Major Medical
Scotland Memorial Hospital. Mary Home Odom v. Bd. /Trustees//
St. of N.C. Teachers' & St. Emp. Comp. Major Medual Plan, and
David G. Devries. as Exec. Admin, of the N.C. Teachers' &. St. Emp.
Comp. Major Medical Plan
Phyllis C. Harris v. Teachers' & St. Emp. Comp. Major Med. Plan

JUSTICE

Philip B. Cales v. Justice, Attorney General's Office

Donald Willard Johnson v. Criminal Justice Ed. & Training Stds. Comm.
Jennings Michael Bostic v. Sheriffs' Ed. & Traning Stds Comm.
Colin Carlisle Mayers v. Sheriffs' Ed. &. Training Stds. Comm.

92 INS 1464
92 INS 1791

93 INS 0197

Chess
Reilly

Nesnow

03/10/93
08/19/93

07/29/93

90 DOJ 0353

Morgan

08/30/93

8:13 NCR

1281

92 DOJ 0420

West

11/05/93

8:17 NCR

1705

92 DOJ 0656*'

West

06/22/93

92 DOJ 0761

Morrison

05/10/93

(

1825

8:18

NORTH CAROLINA REGISTER

December 15, 1993

CONTESTED CASE DECISIONS

AGENCY

Jennings Michael Bostic v. Sheriffs' Ed. & Traning Stds. Comm.

Michael Charles Kershner v. Criminal Justice Ed & Training Stds Comm

George Wilton Hawkins v. Criminal Justice Ed. & Training Stds. Comm.

Marilyn Jean Britt v. Criminal Justice Ed. & Training Stds. Comm.

Tim McCoy Deck v. Criminal Justice Ed. & Training Stds. Comm.

Richard Zander Frink v. Criminal Justice Ed. &. Traning Stds. Comm.

Sherri Ferguson Revis v. Sheriffs' Ed. & Training Stds. Comm.

Mark Thomas v. Sheriffs' Ed. & Training Standards Commission

George Wilton Hawkins v. Sheriffs' Ed. & Training Stds. Comm.

Lonnie Allen Fox v. Sheriffs' Ed. & Training Standards Commission

Alarm Systems Licensing Bd. v. Eric Hoover

Alarm Systems Licensing Bd. v, Vivian Darlene Gaither

Rebecca W Stevenson v. Criminal Justice Ed. &. Training Stds. Comm.

Lloyd Harrison Bryant Jr. v. Criminal Justice Ed &. Training Stds Comm

William B. Lipscomb v. Private Protective Services Board

Private Protective Svcs. Bd. v. Fred D. Rector

Private Protective Svcs. Bd. v. Alan D. Simpson

William M. Medlin v. Sheriffs' Ed. & Training Stds. Comm.

Carl Michael O'Byrne v. Alarm Systems Licensing Board

Private Protective Services Board v. Michael A. McDonald

CASE

DATE OF

PUBLISHED DECISION

NUMBER

ALJ

DECISION

92 DOJ 0829*'

West

06/22/93

92 DOJ 0869

Morgan

08/11/93

92 DOJ 1081*'

Morgan

07/09/93

92 DOJ 1088

Morrison

03/16/93

92 DOJ 1367

Chess

04/01/93

92 DOJ 1465

Nesnow

05/28/93

92 DOJ 1756

Gray

03/23/93

93 DOJ 0151

West

04/21/93

93 DOJ 0156*'

Morgan

07/09/93

93 DOJ 0196

Morrison

08/09/93

93 DOJ 0201

Bee ton

07/12/93

93 DOJ 0202

Chess

05/10/93

93 DOJ 0357

Morrison

09/13/93

93 DOJ 0377

Reilly

08/31/93

93 DOJ 0458

Morrison

06/01/93

93 DOJ 0479

Mann

08/19/93

93 DOJ 0480

West

07/21/93

93 DOJ 0569

Chess

10/06/93

93 DOJ 0844

Nesnow

09/08/93

8:13 NCR 1300

93 DOJ 0975

Gray

11/29/93

LABOR

Greensboro Golf Center, Inc. v. Labor

Ronald Dennis Hunt v. Labor

Jeffrey M. McKinney v. Labor

Pastor Larry C. Taylor Warsaw Church of God v. Labor

92 DOL 0204

Nesnow

04/15/93

92 DOL 1319

Morgan

06/17/93

92 DOL 1333

Morrison

06/21/93

93 DOL 0961

West

11/16/93

MORTUARY SCIENCE

Boaid of Mortuary Science v. Triangle Funeral Chapel, Inc.
PUBLIC INSTRUCTION

92 BMS 1169

Reilly

04/29/93

8:4 NCR 396

Arnold O. Herring v. Public Instruction

Frances F Davis, Parent of Joseph E. Davis v. Public Instruction

Donna Marie Snyder v. Public Instruction

91 EDC 0858

Becton

10/20/93

93 EDC 0628

Mann

07/29/93

93 EDC 0731

Nesnow

09/16/93

STATE PERSONNEL

Frances K. Pate v. Transportation

Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart,

James H. Johnson, James D. Fishel v. Justice
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart,

James H. Johnson, James D. Fishel v. Justice
Connie B. Lee v. Justice

Donald Allen Rutschman v. UNC Greensboro, Office of Human Res.
Bernie B. Kellly v. Correction
Brenda G. Mitchell v. Correction
Walton M. Pitlman v. Correction

Adolph Alexander Justice Jr. v. Motor Vehicles, Transportation
Clayton Brewer v. North Carolina State University
Sherman Daye v. Transportation
Donnie M. White v. Correction

Gregory Samuel Parker v. Environment, Health, &. Natural Resources
Renee E. Shepherd v. Winston-Salem State University
Eva Dockery v. Human Resources

Lee P. Crosby v. Michael Kelly, William Meyer and EHR
William Marshall Boyd Jr. v. County Commissioners of Hyde &.

Certain Board of Health Members
Gregory Samuel Parker v. Environment, Health, & Natural Resources

88 OSP 0340 Morrison 05/03/93

90OSP1064* 1 Mann 05/04/93

90 OSP 1065** Mann 05/04/93

90 OSP I066* 5 Mann 05/04/93

90 OSP 1067** Mann 05/04/93

90OSP1068* 4 Mann 05/04/93

91 OSP 0011

Morgan

10/05/93

8:15 NCR 1498

91 OSP 0305

Chess

10/19/93

91 OSP 0344

Morrison

05/27/93

91 OSP 0625

West

03/08/93

8:1 NCR 75

91 OSP 0805

Morgan

10/06/93

91 OSP 0860

Chess

07/19/93

91 OSP 0941

West

04/02/93

8:3 NCR 306

91 OSP 0951

West

05/07/93

91 OSP 1236

Morgan

04/05/93

91 OSP 1344* 5

Chess

05/20/93

91 OSP 1391

Morgan

04/28/93

92 OSP 0010

Chess

05/03/93

92 OSP 0056

Gray

06/07/93

92 OSP 0090

Gray

08/25/93

92 OSP 0188*'

Chess

05/20/93

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1826

CONTESTED CASE DECISIONS

AGENCY

Willie Granville Bailey v. Winston-Salem Stale University

Mattie W. Smith v. State Agricultural and Technical University

Julia Spinks v. Environment, Health, &. Natural Resources

James B. Price v. Transportation

I. Can Nailling v. UNC-CH

Deborah Barber v. Correction

Lave me B. Hill v. Transportation

Jimmy D. Wilkins v. Transportation

Sarah W. Britt v. Human Resources, C.A. Dillon School, CPS

Charles Robinson v. Revenue

Anna L. Spencer v. Mecklenburg County Area Mental Health

Herman James Goldstein v. UNC-Chapel Hill et al.

Ronnie H. Mozingo v. Correction

Glinda C. Smith v. Wildlife Resources Commission

Cindy G. Bartlett v. Correction

William Kenneth Smith Jr. v. Broughton Hospital (Human Resources)

Larry O. Nobles v. Human Resources

Beatrice Wheless v. Lise M. Miller, University Payroll Off., NC St. Univ.

Tracey Hall v. N.C. Central U, Off. of Seholaiship & Student Aid

Sondra Williams v. Winston-Salem State University

Willie Thomas Hope v. Transportation

David Scales v. Correction

Suzanne Ransley Hill v. Environment, Health. &. Nat. Res.

Herman James Goldstein v. UNC-Chapel Hill et al.

Charles M. Blackwelder v. Correction

Beatrice Wheless v. Lise M. Miller, University Payroll Off., NC St. Univ.

John B. Sauls v. Wake County Health Department

Patti G. Newsome v. Transportation

Nancy McAllister v. Camden County Department of Social Services

Gilbert Jaeger v. Wake County Alcoholism Treatment Center

Joseph Henry Bishop v. Environment, Health, & Natural Res.

Glenn D. Fuqua v. Rockingham County Board of Social Services

Dorothy D. Johnson v. Correction

Willie L. Hudson v. Correction

Brenda K. Campbell v. Employment Security Commission

Christie L. Guthrie v. Environment, Health. &. Natural Resources

Sharon Reavis v. Crime Control & Public Safety

James B. Price v. Transportation

Jerry L. Jones v. N.C.S.U. Physical Plant

Mattie W. Smith v. State Agricultural and Technical University

Gina Renee Cox v. UNC Chapel Hill

Roland W. Holden v. University of North Carolina at Chapel Hill

Betty Bradsher v. UNC-CH

Anthony M. Little v. Human Resources, John Umstead Hospital

Jannie C. Sykes v. Employment Security Commission

Jamal Al Bakkat-Morris v. Glenn Sexton (DSS)

Rebecca Beauchesne v. University of North Carolina at Chapel Hill

Brenda Kay Barnes v. Human Resources

Larry G. Riddle v. Correction, Division of Prisons

Stevie E. Dunn v. Polk Youth Center

Buford D. Vieregge Jr. v. N.C. State University, University Dining

Dorothy Ann Harris v. Correction

Brenda B. Miles v. University of North Carolina Chapel Hill

Deborah J. Whitfield v. Caswell Center

Karen Canter v. Appalachian State University

Terry Steve Brown v. Iredell County Health Department

Barbara A. Johnson v. Human Resources

Carrie P. Smith v. County of Stanly

George W. Allen v. Human Resources, Correction, Agri & EHNR

William G. Fisher v. St Bd of Ed. Albermarle City Schools & Bd of Ed

Grace Jean Washington v. Caswell Center

Ralph Snipes v. Transportation and Correction

Clifton E. Simmons v. Correction

Willie L. James v. Caswell Center

Irving S. Rodgers v. C.A. Dillon, Division of Youth Services

Richard E. Howell v. Correction, Wayne Correctional Center

Brian Dale Barnhaidl v. State Highway Patrol

FR. "Don' 1 Bowen v. Human Resources

CASE

DATE OF

NUMBER

ALJ

DECISION

92 OSP 0285

Morrison

03/10/93

92 OSP 0298* 12

Rellly

09/14/93

92 OSP 0313

Becton

04/12/93

92 OSP 0375

Gray

04/13/93

92 OSP 0394

Becton

04/20/93

92 OSP 0396

Chess

03/04/93

92 OSP 043 1* 1

West

03/08/93

92 OSP 0432* 1

West

03/08/93

92 OSP 0455

West

05/26/93

92 OSP 0553

Morgan

07/21/93

92 OSP 0584

Becton

08/16/93

92 OSP 0634

Morrison

05/04/93

92 OSP 0644

Mann

10/11/93

92 OSP 0653

Morrison

03/12/93

92 OSP 0671

M organ

06/08/93

92 OSP 0684

Becton

05/10/93

92 OSP 0732

Mann

04/23/93

92 OSP 0744* 10

Morgan

07/16/93

92 OSP 0815

Morgan

09/16/93

92 OSP 0847

Morrison

08/06/93

92 OSP 0947

Morgan

03/23/93

92 OSP 0989

Chess

06/24/93

92 OSP 0992

Reilly

03/18/93

92 OSP

1047

Morrison

05/04/93

92 OSP

1082

Morrison

10/15/93

92 OSP

1 124* 10

Morgan

07/16/93

92 OSP

1142

Reilly

03/08/93

92 OSP

1180

Becton

09/22/93

92 OSP

1185

Chess

09/07/93

92 OSP

1204

Reilly

05/10/93

92 OSP

1243

Reilly

03/05/93

92 OSP

1318

Morrison

08/03/93

92 OSP

1395

Nesnow

10/29/93

92 OSP

1468

Becton

05/26/93

92 OSP

1505

Morrison

03/17/93

92 OSP

1555

Becton

05/31/93

92 OSP

1606

Morrison

08/19/93

92 OSP

1657

Mann

03/19/93

92 OSP

1661

Chess

07/06/93

92 OSP

1691* 12

Reilly

09/14/93

92 OSP

1692

Becton

10/18/93

92 OSP

1715

Becton

08/30/93

92 OSP

1733

Becton

03/30/93

92 OSP

1734

Becton

09/01/93

92 OSP

1738

Gray

10/25/93

92 OSP

1741

Becton

03/24/93

92 OSP

1767

Becton

10/01/93

92 OSP

1768

Morrison

03/17/93

92 OSP

1774

Gray

04/26/93

92 OSP

1789

Becton

04/19/93

92 OSP

1796

Morrison

05/27/93

93 OSP 0013

Morrison

09/15/93

93 OSP 0033

Morrison

09/10/93

93 OSP 0064

West

09/20/93

93 OSP 0079

Reilly

06/15/93

93 OSP 0101

Morgan

08/06/93

93 OSP 0103

Morrison

03/17/93

93 OSP 0109

Becton

04/01/93

93 OSP 0111

Reilly

04/16/93

93 OSP 0134

Becton

04/20/93

93 OSP 0153

Morgan

06/03/93

93 OSP 0157

Mann

10/29/93

93 OSP 0159

Morrison

04/21/93

93 OSP 0171

Morgan

05/27/93

93 OSP 0177

West

04/21/93

93 OSP 0245

Gray

08/25/93

93 OSP 0251

Reilly

07/27/93

93 OSP 0253

Morgan

08/06/93

PUBLISHED DECISION
REGISTER CITATION

8:4 NCR 382

8:6 NCR 484

:2 NCR 224
:15 NCR 1500

: 1 NCR 88
:14 NCR 1346

8:12 NCR 1163

8:13 NCR 1292

1827

8:18

NORTH CAROLINA REGISTER

December 15, 1993

CONTESTED CASE DECISIONS

AGENCY

Michael L. Pegram v. Correction

Jerry D. Doss Sr. v. Correction

Debbie Renee Robinson v. Correction

Shaw Boyd v. Correction

Linda R. Wharton v. N.C. A & T University

Michael L. Pegram v. Correction

Ralph W. Burcham v. Transportation

AJvin Lamonte Breedon v. OPC Mental Health

Hubert L. Holmes v. Transportation

Vernell Ellis Turner v. NC A & T Felice Dept, NC Agricultural Tech U

Timothy E. Blevins v. UNC A/K/A Western Carolina University

Xantippe Blackwell v. Human Resources, Murdoch Center

Wayne Bradley Johnson v. State Computing Center

Harold Kovolenko v. Lynn C. Phillips, Director of Prisons

Daniel Thomas Wheeler, Kye Lee Wheeler v. Caldwell County

Department of Social Services
Terry Johnson v. Correction
David Henry v. Correction
Kathleen E. Conran v. New Bern Police Dept., City of New Bern; and

City of New Bern Police Civil Service Boaid
Berton Hamm Jr. v. Wake County Child & Family Services
John R. Woods Sr. v. Wake County Child & Family Services
Coleman F. Tyrance Jr. v. Wake County Child & Family Services
John Augusta Page v. Wake County Child & Family Services
Thomas James v. Wake County Child & Family Services
James E. Hargrove v. Wake County Child &. Family Services
Ricky Harrell v. Wake County Child & Family Services
Bruce Creecy v. Wake County Child &. Family Services
Dana Phillips v. Administrative Office of the Courts
Terry P. Chappell v. Correction

CASE

DATE OF

PUBLISHED DECISION

NUMBER

ALJ

DECISION

93 OSP 0275**

Reilly

06/28/93

93 OSP 0287

Gray

05/17/93

93 OSP 0383

Nesnow

06/07/93

93 OSP 0438

Morgan

11/12/93

8:18 NCR 1838

93 OSP 0456

Chess

09/22/93

93 OSP 0472**

Reilly

06/28/93

93 OSP 0493

Chess

10/15/93

8:16 NCR 1558

93 OSP 0551

Gray

11/23/93

93 OSP 0572

Reilly

08/17/93

93 OSP 0577

Becton

11/03/93

93 OSP 0604

Morgan

09/29/93

93 OSP 0632

Reilly

09/01/93

93 OSP 0694

Chess

10/11/93

93 OSP 0697

Nesnow

09/08/93

93 OSP 0752

Nesnow

09/16/93

93 OSP 0757

Gray

10/06/93

93 OSP 0789

Gray

11/29/93

93 OSP 0797

Morrison

09/21/93

93 OSP 0809

Becton

10/27/93

93 OSP 0810

Becton

11/02/93

93 OSP 0811

Becton

11/02/93

93 OSP 0812

Becton

11/02/93

93 OSP 0813

Becton

11/02/93

93 OSP 0814

Becton

11/02/93

93 OSP 0815

Becton

11/02/93

93 OSP 0816

Becton

11/02/93

93 OSP 0822

West

09/09/93

93 OSP 0834

Nesnow

10/11/93

STATE TREASURER

Juanita M. Braxton v. Bd. of Trustees /Teachers' & St Emp Ret Sys
Herman D. Brooks v. Bd of Trustees /Teachers' & St Emp Ret Sys
Henrietta Sandlin v. Teachers' & State Emp Comp Major Medical Plan
Frances Billingsley v. Bd /Trustees/Teachers' &. St. Emp. Ret. Sys.
Dennis Willoughby v. Bd. /Trustees /Teachers' & St. Emp. Ret. Sys.
Mary Alyce Carmichael v. Bd /Trustees/Teachers' &. St Emp Ret Sys
Shirley M. Smith v. Bd. /Trustees /Teachers' & St. Emp. Ret. Sys.
W. Rex Perry v. Bd/Trustees/Teachers' & St Emp Ret Sys
Rory Dale Swiggett v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. Sys.
Catherine D Whitley v. Bd. /Trustees /Teachers & St. Emp. Ret. Sys.

91 DST 0017

West

09/07/93

91 DST 0566

Gray

04/13/93

92 DST 0305

Morgan

04/12/93

92 DST 0996

West

09/20/93

92 DST 1439

West

09/20/93

8:14 NCR 1356

92 DST 1506

Chess

04/08/93

92 DST 1776

Reilly

11/18/93

8:18 NCR 1829

93 DST 0133

West

08/12/93

8:11 NCR 992

93 DST 0198

West

09/28/93

8:14 NCR 1360

93 DST 0727

Reilly

11/18/93

TRANSPORTATION

Yates Construction Co. , Inc. v. Transportation
UNTVERSITY OF NORTH CAROLINA HOSPITALS

92 DOT 1800 Morgan 03/25/93

Constance V. Graham v. UNC Hospital
Jacqueline Florence v. UNC Hospitals

93 UNC 0269
93 UNC 0355

Morgan
Becton

07/20/93
06/16/93

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1828

CONTESTED CASE DECISIONS

STATE OF NORTH CAROLINA

COUNTY OF CUMBERLAND

IN THE OFFICE OF
ADMTNISTRATTVE HEARINGS

92 DST 1776

SHIRLEY M. SMITH.

Petitioner.

THE BOARD OF TRUSTEES OF THE
TEACHERS' AND STATE EMPLOYEES'
RETIREMENT SYSTEM,
Respondent.

RECOMMENDED DECISION

This matter came on for hearing before the undersigned administrative law judge on November 10,
1993, in Raleigh.

Mr. Charles T. Hall represented the petitioner. Mr. Alexander McC. Peters represented the
respondent. The parties stipulated the facts.

ISSUES

1. Are long-term disability benefits reduced under G.S. 135-106(b) by the gross amount of Social
Security disability benefits or by the net amount of those benefits after deduction of attorney fees and
costs?

2. Are long-term disability benefits reduced under G.S. 135-106(b) by the receipt of Social Security
Widow's Benefits?

STIPULATION OF FACTS

1 . The petitioner is a former employee of a North Carolina school system who was forced to retire
because of illness.

2. As a result of her employment with a North Carolina school system and her disability, the petitioner
applied for long-term disability benefits under the disability income plan administered by the
respondent. See G.S. 135-106. This application was approved and the petitioner is receiving long-
term disability benefits.

3. Long-term disability benefits under the disability income plan are subject to reduction by the amount
of the primary disability benefits that a retiree receives from the Social Security Administration. See
G.S. 135-106(b). This reduction shall hereinafter be referred to as the "offset."

4. The petitioner also applied for Disability Insurance Benefits under the Social Security Act, 42 USC
423, and for Social Security Widow's Benefits on the basis of disability on the Social Security account
of her late husband, Lester Smith, under 42 USC 402(e).

5. The petitioner's claims for Disability Insurance Benefits and Widow's Benefits on the basis of
disability were denied by the Social Security Administration at the initial level. The petitioner
requested reconsideration of the denial of her claims, but her claims were again denied. The
petitioner then requested an administrative hearing concerning her claims.

1829

8:18

NORTH CAROLINA REGISTER

December 15, 1993

CONTESTED CASE DECISIONS

6. The petitioner retained Charles T. Hall, Attorney at Law, to represent her at the administrative
hearing on her claims. The petitioner and the attorney signed an agreement by which the attorney
would receive no fee if the petitioner's claims were denied, but a fee of one-quarter of the back
benefits paid the petitioner if the claims were approved. The agreement also provided that the
petitioner was to reimburse the attorney for any costs associated with the case.

7. After a hearing, a Social Security administrative law judge approved both of the petitioner's claims.

8. Under the provisions of the Social Security Act, 42 USC 406, one-quarter of the petitioner's back
benefits, i.e. $2,352.00, was withheld by the Social Security Administration for attorney fees and not
paid to the petitioner.

9. The petitioner's attorney filed a petition on his own behalf with the Social Security Administration
seeking approval of an attorney fee of one quarter of the petitioner's back Disability Insurance
Benefits. The attorney's petition was approved and the Social Security Administration paid $2,352.00
directly to the attorney. In addition, the petitioner reimbursed the attorney $93.00 for costs that the
attorney incurred in representing the petitioner.

10. Upon learning that the Social Security Administration had approved the petitioner's claim for
Disability Insurance Benefits, the Retirement Systems Division of the Department of State Treasurer
which acts as the respondent's agent and administers the disability income plan on a day to day basis
made a computation of the offset, that should be applied because the petitioner had now received
disability benefits from the Social Security Administration for the same period of time that she had
received long-term disability benefits from the disability income plan. In computing the offset, the
Retirement Systems Division used the gross amount of Disability Insurance Benefits for the petitioner
plus the gross amount of Widow's Benefits on account of disability, rather than the net amount after
attorney fees had been withheld by the Social Security Administration and paid to the petitioner's
attorney and after payment by the petitioner of costs associated with presenting her case to the Social
Security Administration.

CONCLUSIONS OF LAW

1. Long-term disability benefits may be reduced under G.S. 135-106(b) by the gross amount of past-due
Social Security disability benefits received by the petitioner.

2. Long-term disability benefits may not be reduced under G.S. 135- 106(b) by the amount of the
petitioner's Social Security Widow's Benefits.

RECOMMENDED DECISION

It is recommended that G.S. 135- 106(b) benefits may be reduced by the gross amount of past-due
Social Security benefits received by the petitioner but may not be reduced by the amount of the petitioner's
Social Security Widow's Benefits.

MEMORANDUM

G.S. 135-106(b) provides in part that long-term disability benefits will be "reduced by any primary
Social Security disability benefits and by monthly payments for Workers' Compensation to which the
participant or beneficiary may be entitled , but the benefits payable shall be no less than ten dollars ($10.00)
a month." The respondent contends that the case turns on the word "primary" which means "basic." The
petitioner contends that the word "primary" was intended to distinguish between benefits for "primary
beneficiaries" as opposed to "auxiliary beneficiaries". The undersigned is of the opinion that "primary" means
that the Social Security benefits were recognized by the General Assembly to be the foremost source of
assistance.

8:18 NORTH CAROLINA REGISTER December 15, 1993 1830

CONTESTED CASE DECISIONS

The critical word is "entitled" which refers to the Social Security disability benefits as well as
Workers' Compensation payments. 42 USC 406, cited by the parties, provides in part that "the Secretary shall
. . . certify for payment out of such past-due benefits ... to such attorney an amount equal to so much of
the maximum fee as does not exceed 25 percent of such past due benefits . . . . " This language confirms that
the petitioner was awarded a certain amount of past-due benefits to which she was entitled and from which
the Secretary paid the fees due the attorney. This is consistent with the common understanding that, absent
contrary statutory language, a party is responsible for paying his or her own attorney fees. Therefore, the
respondent properly reduced the benefits payable under G.S. 135- 106(b) by the gross amount of past-due
Social Security disability benefits received by the petitioner.

II.

There are three basic types of Social Security benefits: Old Age Benefits (42 USC 402), Survivors
Benefits (42 USC 402), and Disability Insurance Benefits (42 USC 423). The first two are paid out of one
fund; the third is paid out of a second fund.

Widow's Benefits are paid out of the first fund. These benefits are survivors benefits, not disability
benefits, even though disability is a necessary condition if the person is between the age of 50 and 60.
Therefore, the petitioner's Social Security Widow's Benefits are not "Social Security disability benefits" as
the term is used in G.S. 135-106(b).

ORDER

It is hereby ORDERED that the agency serve a copy of the Final Decision on the Office of
Administrative Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina
General Statutes 150B-36(b).

NOTICE

The final decision in this contested case shall be made by the respondent. Each party has the right to
file exceptions to the recommended decision and to present written arguments on the decision to this agency.

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

This the 18th day of November, 1993.

Robert Roosevelt Reilly, Jr.
Administrative Law Judge

1831 8:18 NORTH CAROLINA REGISTER December 15, 1993

CONTESTED CASE DECISIONS

STATE OF NORTH CAROLINA
COUNTY OF CHEROKEE

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

93 DHR 0343

NELL BROOKS,
Petitioner,

CHILD DAY CARE SECTION, CHEROKEE
COUNTY DEPARTMENT OF SOCIAL SERVICES,
Respondent.

RECOMMENDED DECISION

This matter was heard before Brenda B. Becton, Administrative Law Judge, on July 29, 1993, in
Murphy, North Carolina. At the conclusion of the hearing, the parties were afforded an opportunity to file
written submissions. The record was closed on October 12, 1993.

APPEARANCES

Petitioner: James L. Blomeley, Jr., Attorney, Murphy,

North Carolina.

Respondent: Staci Tolliver Rust, Associate Attorney

General, N. C. Department of Justice, Raleigh, North Carolina.

ISSUE

Whether the Respondent properly and correctly revoked the Petitioner's registration certificate for her
child day care home based upon alleged substantiation of child neglect and violations of the child day care
requirements.

BURDEN OF PROOF

The burden of proof is on the Respondent, Division of Child Development. The Respondent has the
burden of proving, by the greater weight of the substantial evidence, that the Petitioner violated requirements
of the child day care laws and regulations by neglecting children in her care.

EXHIBITS

Exhibits were omitted from this publication. If you would like a copy please contact the Office of
Administrative Hearings, P.O. Box 27447, Raleigh, NC 27611-7447, (919) 733-2678.

EVIDENTIARY RULING

The Petitioner offered P3, letters of support, in evidence and the Respondent objected on the basis
of hearsay. The undersigned reserved ruling on the matter.

The letters of support offered by the Petitioner are in the nature of "character" evidence similar to
the testimony of witnesses called to testify on the Petitioner's behalf. The Respondent had an opportunity to
cross examine witnesses who offered testimony similar to that contained in the letters of support. Therefore
Respondent's inability to cross examine the persons writing the letters of support is not an unduly prejudicial

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1832

CONTESTED CASE DECISIONS

handicap in these circumstances.

Therefore, the Respondent's objection to Petitioner's exhibit three is hereby OVERRULED, and the
documents are admitted in evidence.

FINDINGS OF FACT

From official documents in the file, sworn testimony of the witnesses, and other competent and
admissible evidence, it is found as a fact that:

1. The Petitioner holds registration certificate I.D. #20-0-5018 with the Division of Child Development
of the North Carolina Department of Human Resources for operation of a day care home.

2. The Petitioner has cared for approximately 60 to 70 children in her home over the years. Up until
the time she became a licensed home child care provider in 1989, she treated the children as she did
her own and would spank them when she thought such discipline was appropriate.

3. The Petitioner testified that she has not administered any form of corporal punishment to a child in
her care since she became licensed as home child care provider.

4. In September, 1992, the Cherokee County Department of Social Services (hereinafter "DSS") received
a complaint about a child that the Petitioner cared for in her home.

5. DSS notified the Respondent that it had received a complaint regarding the Petitioner's day care
home.

6. Both DSS and the Respondent initiated investigations regarding the allegations against the Petitioner.

7. On September 11, 1992, BeBe Cornwell, a social worker employed by DSS met the mother of the
alleged victim child at the day care center the child was now attending in Andrews. Ms. Cornwell
took pictures of the child's buttocks.

8. The alleged victim child had small one and a half to two and a half inch bruises on the fleshy part
of her buttocks. In addition, there were two red parallel lines about one to one and a half inches
apart in the same area.

9. The alleged victim child and her four year old sister had been cared for by the Petitioner in her home
on September 10, 1992 from approximately 3:00 p.m. until 8:00 p.m. The bruises had been
discovered sometime during the evening of September 10 by the child's step-father when he changed
the child's diaper.

10. On September 14, 1992, Ms. Cornwell interviewed the alleged victim child's four year old sister and
the Petitioner for the purpose of gathering information regarding the allegations made against the
Petitioner.

11. On September 17, 1992, Ms. Cornwell and Becky Porterfield, a Child Care Consultant with the
Respondent, visited the Petitioner's home. During the visit, Ms. Cornwell and Ms. Porterfield
interviewed the Petitioner and inspected the Petitioner's premises.

12. During the interview, the Petitioner told Ms. Cornwell and Ms. Porterfield that she had not observed
anything wrong with the alleged victim child during the time she was in the Petitioner's care.

14. When Ms. Cornwell returned to her office she met with her supervisor to discuss the case. Her

supervisor recommended that the alleged victim child's sister be interviewed again.

1833 8:18 NORTH CAROLINA REGISTER December 15, 1993

CONTESTED CASE DECISIONS

15. On September 28, 1992, Ms. Cornwell interviewed the alleged victim child's four year old sister
again to see if her story remained consistent.

16. On October 1, 1992, Ms. Cornwell spoke with five children whom the Petitioner cared for at her
home.

17. On October 13, 1992, while DSS continued its investigation of the complaint against the Petitioner,
DSS received another report alleging abuse of a child that the Petitioner cared for in her home. DSS
notified the Respondent that it had received a second report of alleged child abuse regarding the
Petitioner's child care home.

18. DSS visited the second alleged victim child's home on October 13 to gather information regarding
the allegations of abuse and to observe and photograph the child.

19. The alleged victim child had linear, parallel bruising on the buttocks. The bruises were one to one
and a half inches long with a space between them about the width of a ruler.

20. The alleged victim child's mother reported that the Petitioner had been caring for the child for two
weeks. On the previous day, the child had been taken to the Petitioner's home at approximately 7:15
a.m. and picked up at about 3:30 p.m. The mother changed the child's diaper at approximately 4:00
p.m. and she noticed that there were red marks on the child's buttocks that she thought might be
related to the child's diaper rash. When she bathed the child later that evening, the red marks had
darkened and looked liked bruises. She called the Petitioner at approximately 8:00 p.m. to ask about
the bruises. The Petitioner told the mother that she had not noticed any marks on the child's buttocks
and she also said that the child had not fallen while at the Petitioner's home.

21. The alleged victim child's mother testified that there were no marks other than a diaper rash on the
child's buttocks when she took her to the Petitioner's home that morning, and nothing occurred that
would have caused marks of the type she observed on her child between the time she picked her child
up from the Petitioner's and noticed the red marks on the child's buttocks.

22. On October 15, 1992, Ms. Cornwell and Ms. Porterfield went to the Petitioner's home to investigate
the second allegation of abuse at the day care home. The Petitioner denied striking the second alleged
victim child and stated that the child had been fine when she went to the bathroom about 3:00 p.m.
the afternoon the alleged abuse was supposed to have occurred. The Petitioner reported that the
child's mother had called on the evening of October 12, 1992 to ask about the bruises on her
daughter's buttocks.

23. The investigations by DSS and the Respondent did not uncover any instrument in the Petitioner's
home which could have caused such distinctive bruising on the buttocks of the two alleged victim
children.

24. On October 19, 1992, Ms. Cornwell and her supervisor "staffed" the investigations regarding the
allegations of September 11, 1992 and October 13, 1992.

25. Ms. Cornwell and her supervisor "staffed" the investigations again on October 21, 1992 and decided
to substantiate both reports received by DSS.

26. The basis for the substantiation by DSS was that both children had suffered bruising that was identical
in shape, location, and coloration. Both children were in the "potty" training stages of development
and the bruises were discovered by parents after their children were taken home from the Petitioner's
day care home. DSS felt that it was more than a mere coincidence that two children whom the
Petitioner cared for were found to have such similar bruises.

27. Neither DSS nor the Respondent inspected the homes of the alleged victim children to determine if

8:18 NORTH CAROLINA REGISTER December 15, 1993 1834

CONTESTED CASE DECISIONS

some object in the children's homes could have produced the bruises. The parents were asked if they
had spanked the children and they denied having done so.

28. The DSS investigation included conversations with several of the parents whose children the Petitioner
kept. These parent interviews were conducted after the decision to substantiate neglect was made.

29. DSS notified the Respondent of its decision to substantiate neglect against the Petitioner in a letter
dated October 21, 1992.

30. Following the substantiation by DSS, the Respondent concluded its investigation and substantiated
neglect against the Petitioner.

31. The Respondent reviewed the investigation and substantiations of neglect against the Petitioner on
February 11, 1993 and recommended revocation of the Petitioner's registration certificate.

32. The Respondent notified the Petitioner of its decision to substantiate neglect and revoke the
Petitioner's registration certificate by letter dated February 15, 1993.

33. The Respondent proceeded to revoke the Petitioner's registration certificate and sent a Notice of
Administrative Action by letter dated March 12, 1993.

34. The Petitioner denies having ever disciplined a child inappropriately and states that she uses "time-
out" as a disciplinary action when needed.

35. The Petitioner denies causing any of the bruises found on the alleged victim children. The Petitioner
also denies that either of two children had any kind of accident that could have caused the bruises
while they were in her care.

36. Both of the alleged victim children were cared for by the Petitioner on the same day the marks and
bruising were discovered.

37. Children in the Petitioner's care who were interviewed by DSS deny that she has used corporal
punishment on them as a means of discipline.

38. Many of the parents of the children the Petitioner cares for are satisfied with the care the Petitioner
has been providing their children.

39. The Petitioner has no history of child abuse or neglect. Neither does she have a history of non-
compliance with child day care rules and regulations.

40. DSS apparently believed the information it obtained from the four year old sibling of one of the
alleged victim children and used that information to reach its conclusion that the Petitioner had
spanked the two alleged victim children. There was no evidence presented as to why this child's
statement was more believable than those of the other children who denied any instances of corporal
punishment taking place in the Petitioner's home.

41. There is insufficient evidence to make any finding as to the specific cause of the marks and bruises
found on the buttocks of the two alleged victim children.

42. There is insufficient evidence to support the Respondent's conclusion, found in its Negative Action
Proposal under Probability of Reoccurrence (Respondent's exhibit R"G"), that the Petitioner "used
corporal punishment on two children in her care...."

43. North Carolina General Statutes section 1 10-88(6a) provides that the Child Day Care Commission has
the power and duty to make rules for administrative action against a child day care home when

1835 8:18 NORTH CAROLINA REGISTER December 15, 1993

CONTESTED CASE DECISIONS

investigations substantiate that child abuse or neglect did occur in the home. The type of sanction
is determined by the severity of the incident and the probability of reoccurrence.

44. North Carolina General Statutes section 110-104.2 provides that child abuse and neglect, as defined
in section 7A-517 and 14-318.2, -318.4 of the North Carolina General Statutes, which occurs in day
care facilities and homes is a violation of the licensure and registration standards and laws.

45. North Carolina General Statutes section 7A-5 17(21) (Cum. Supp. 1992) defines neglected juvenile,
in pertinent part, as:

[a] juvenile who does not receive proper care, supervision, or discipline
from his parent, guardian, custodian, or caretaker ....

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the
following:

CONCLUSIONS OF LAW

1 . In order to prevail in this contested case, the Respondent has the burden of proving by the greater
weight of the evidence that the Petitioner "neglected" the two children who were later discovered to
have bruised buttocks. There is nothing in the law that places the initial burden on the Petitioner to
disprove neglect.

2. The root of the Respondent's suspicion that the bruises on the two alleged victim children were caused
by the Petitioner's neglect appears to be the Petitioner's failure to offer a plausible explanation for
how the bruises came to be. If the evidence is such that it is conclusively proven that the bruises
could only have occurred while the children were in the Petitioner's care, then the Petitioner's lack
of a plausible explanation for the occurrence of the bruises would probably be an indication of
improper supervision on her part and, therefore, an indication of neglect.

3. The evidence, however, does not demonstrate that the bruises for both of the children must have
occurred while the Petitioner was caring for them. Unfortunately, the investigators' assumption that
the bruises most likely originated with the Petitioner caused them to not fully investigate the
circumstances of the two alleged victim children both before and after they were cared for by the
Petitioner. Therefore, the existence of the bruises does not, in and of themselves, lead to a
conclusion of neglect on the part of the Petitioner.

Although, as the Respondent noted, it seems to be more than a coincidence that two children from
different homes suffered such similar bruises, it also seems incredible that the Petitioner, who knew
she was being investigated, would do anything that would result in the same type of bruises appearing
upon another child in her care.

The evidence does, however, establish that the second alleged victim child did not have bruises when
she was taken to the Petitioner's home and that nothing happened to cause bruises between the time
she was picked up from the Petitioner's and the time the bruises were discovered. Therefore, with
respect to the second alleged victim child, the evidence indicates that the bruises must have occurred
while the child was in the Petitioner's care. The fact that the Petitioner does not know how the
bruises occurred is an indication of neglect on her part.

4. Based upon the evidence, the undersigned is left to debate how the bruises came to appear on the two
alleged victim children's buttocks. Because of the lack of affirmative evidence that the Petitioner
caused the bruises and the Respondent's failure to investigate and eliminate other possible causes of
the bruises, it is impossible to conclude that the marks on the first alleged victim child could have
only been the result of neglect on the part of the Petitioner. Thus, the Respondent has failed to
establish by the greater weight of the evidence that the Petitioner neglected alleged victim child in her

8:18 NORTH CAROLINA REGISTER December 15, 1993 1836

CONTESTED CASE DECISIONS

care on September 10, 1992.

5. The Petitioner did neglect the child left in her care on October 12, 1992.

RECOMMENDED DECISION

The North Carolina Department of Human Resources will make the Final Decision in this contested
case. It is recommended that agency adopt the Findings of Fact and Conclusions of Law set forth above and
find that there is sufficient evidence to substantiate neglect on the part of the Petitioner occurred on October
12, 1992. However, since the evidence fails to establish abuse and only supports one instance of neglect, the
agency should consider the imposition of some lesser penalty than revocation of the Petitioner's registration
certificate.

ORDER

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General
Statutes section 150B-36(b).

NOTICE

Before the agency makes the FINAL DECISION, it is required by North Carolina General Statutes
section 150B-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED DECISION,
and to present written arguments to those in the agency who will make the final decision.

The agency is required by North Carolina General Statutes section 150B-36(b)to serve a copy of the
Final Decision on all parties and to furnish a copy to the Parties' attorney of record.

This the 29th day of November, 1993.

Brenda B. Becton
Administrative Law Judge

1837 8:18 NORTH CAROLINA REGISTER December 15, 1993

CONTESTED CASE DECISIONS

STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

93 OSP 0438

SHAW BOYD

Petitioner,

THE NORTH CAROLINA DEPARTMENT OF
CORRECTION

Respondent.

RECOMMENDED DECISION

The above-captioned matter was heard by Michael Rivers Morgan, Administrative Law Judge on
September 7 and 8, 1993 in Charlotte, North Carolina.

APPEARANCES

S. Luke Largess, Ferguson, Stein, Wallas, Adkins, Gresham and Sumter, for the Petitioner.
Neil Dalton, Assistant Attorney General, for the Respondent.

ISSUES

1 . Whether the Respondent denied the Petitioner a promotion in his employment because of his race;

2. Whether the Respondent denied the Petitioner a promotion in his employment because of his age.

STIPULATED FACTS

The parties stipulated and agreed to the following undisputed facts in the Prehearing Order filed on
September 7, 1993:

a. Shaw Boyd is a Probation/Parole Officer, pay grade 66; and

b. If Shaw Boyd had been promoted to the position of Intensive Officer, pay grade 68 as a result
of his December, 1992 interview, he would have received a pay increase.

FINDINGS OF FACT

Based upon the evidence admitted at the hearing, the undersigned administrative law judge finds the
following facts:

1 . The Petitioner is employed as a Probation/Parole Officer II with the Respondent's Division of Adult
Probation and Parole, working in Parole Services in Charlotte, North Carolina.

2. The Petitioner has been employed with the Respondent since February 16, 1976.

3. The Petitioner is a black male who is 54 years of age.

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1838

CONTESTED CASE DECISIONS

4. The job position of Intensive Probation Officer was created within the Respondent by the North
Carolina General Assembly in 1983.

5. An Intensive Probation Officer's work duties for the Respondent include primary responsibilities for
a caseload of probationers parolees, treatment of probationers/parolees and supervision of the
probation officer for each probationer/parolee.

6. An Intensive Probation Officer is part of an intensive probation team— composed of one Intensive
Probation Officer, a Surveillance Officer and one Stenographer III— which provide close supervision
of people who must do community services, pass employment checks, pass drug tests and be
searched who otherwise would be incarcerated.

7. An Intensive Probation Officer is more similar to a probation officer than a parole officer.

8. An Intensive Probation Officer must have at least five personal contacts, three to five curfew checks
and one employment check per week with each of the officer's clients.

9. In order for an individual to be eligible to apply to become an Intensive Probation Officer with the
Respondent, the individual must have at least three years of experience as a probation/parole officer
and a college degree.

10. There is not a promotional examination for Intensive Probation Officer candidates, as the candidates
are tested on their knowledge through interview questions which are designed to help the interviewers
to evaluate each candidate's preparation and understanding to become an Intensive Probation Officer.

1 1. An interview committee directs questions to the applicants for Intensive Probation Officer positions.

12. In December 1992 an Intensive Probation/Parole Officer position was available to be staffed in the
Respondent's Branch L.

13. The Respondent's Branch L is composed of Mecklenburg, Gaston and Union Counties.

14. When an Intensive Probation Officer position is available in the Respondent's workforce, the
Respondent's headquarters in Raleigh posts the vacant position, applications for the position are later
screened in order to ascertain that the Intensive Probation Officer applicant has at least three years
of experience as a probation/parole officer and a team of interviewers performs interviews on the
branch level of the job applicants and makes a recommendation of an applicant to staff the Intensive
Probation Officer position.

15. Eight individuals submitted applications for the Intensive Probation/Parole Officer position which was
available in December 1992, including the Petitioner and James M. Honeycutt.

16. Six job applicants were interviewed for the Intensive Probation/Parole Officer position which was
available in December 1992, including the Petitioner and James M. Honeycutt.

17. George Pettigrew is employed with the Respondent as the Manager of Branch L of the Respondent's
Adult Probation and Parole.

18. Don Welch is employed with the Respondent as a Unit Supervisor who supervises Intensive
Probation Officers in Mecklenburg County in the Respondent's Division of Adult Probation and
Parole.

19. Pettigrew and Welch comprised the interview team which interviewed applicants for the Intensive
Probation Officer position which was available in the Respondent in December 1992.

1839 8:18 NORTH CAROLINA REGISTER December 15, 1993

CONTESTED CASE DECISIONS

20. Pettigrew has served on a number of job applicant interview teams, including serving as the chair
of two interview teams for vacant Intensive Probation Officer positions.

21. Pettigrew has interviewed the Petitioner in job promotional opportunities on several occasions for
Intensive Probation Officer positions and on one occasion for a Unit Supervisor position.

22. Welch has served on three or four job applicant interview teams, including Intensive Probation
Officer job applicant interview teams.

23. Welch has interviewed the Petitioner on two occasions for Intensive Probation Officer positions.

24. The Petitioner has seventeen years of experience with the Respondent, working in the areas of both
probation and parole, and has served as a pretrial release coordinator.

25. Honeycutt, a white male who was born on February 20, 1964 and therefore was 28 years of age at
the time of his interview in December 1992 for the job position of Intensive Probation/Parole
Officer, has three years of experience with the Respondent, working in the area of parole since
October 1, 1989.

26. Pettigrew and Welch recommended Honeycutt as their first choice to fill the vacant Intensive
Probation Officer position for which they conducted interviews in December 1992, stating in a
memorandum to the Respondent's employee John G. Patseavouras from Pettigrew dated December
21, 1992 that Honeycutt "has exceeded the expectations in his present job responsibilities and
possesses the skills and knowledge for this position."

27. In the December 21, 1992 memorandum from Pettigrew to Patseavouras concerning the
recommended applicant of Pettigrew and Welch to fill the vacant Intensive Probation Officer
position, Pettigrew stated that the Petitioner "adequately performs his duties as a parole officer, but
we definitely do not feel he is ready to move to the position of Intensive Officer."

28. The recommendation of Pettigrew and Welch that Honeycutt be awarded the vacant Intensive
Probation Officer position for which Pettigrew and Welch conducted interviews for the job vacancy
in December 1992 was followed, and Honeycutt was placed in the Intensive Probation Officer
position.

29. In their respective evaluations in their Work Planning and Performance Review materials, both the
Petitioner and Honeycutt received favorable job performance ratings.

30. In their respective evaluations in their Performance Management System materials, both the
Petitioner and Honeycutt received "good" and "very good" job performance ratings in specific areas
of evaluation, with each employee of the Respondent receiving an overall job performance rating of
"very good."

31. While the Petitioner received a job performance rating of "outstanding" in some specific areas of
evaluation in his Performance Management System materials, Honeycutt did not receive a job
performance rating of "outstanding" in any specific areas of evaluation in his Performance
Management System materials.

32. When Pettigrew has served on job applicant review teams for the Respondent, Pettigrew is aware
of an applicant's job performance but does not review it.

33. Pettigrew was not aware that the Petitioner had better job performance evaluations than Honeycutt.

34. Welch did not consider the job performance ratings of any of the applicants for the Intensive
Probation Officer position for which interviews were conducted in December 1992.

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CONTESTED CASE DECISIONS

35. Recordkeeping skills are important in the intensive probation program, because 700 to 800 contacts
per month must be made and recorded by an Intensive Probation Officer.

36. Welch considered that the Petitioner would have a problem in keeping up the detailed paperwork
caseload of an Intensive Probation Officer and that the Petitioner would be inadequate at processing
paperwork as a supervisor.

37. Welch is familiar with the Petitioner's job performance based upon Welch's responsibility for the
Respondent's house arrest program, because some of the Petitioner's clients are on house arrest and
the Petitioner therefore files reports with Welch.

38. The Petitioner's filed house arrest reports contained numerous errors, which Welch reported to the
Petitioner's supervisor.

39. Most of the Respondent's parole officers commit one or two errors on their reports, and Honeycutt
did not commit any errors in submitting reports in his eight house arrest cases.

40. Between October 24, 1992 and September 7, 1993, the Petitioner did not commit any errors in his
reports.

41 . An Intensive Probation Officer does not maintain a caseload of more than twenty-five clients.

42. A Probation/ Parole Officer of the Respondent such as the Petitioner typically maintains a caseload
of more than one hundred clients.

43. Pettigrew is familiar with the Petitioner's job performance based upon Pettigrew's supervision of the
Petitioner when the Petitioner was a probation officer.

44. When the Petitioner worked with the Respondent under Pettigrew's supervision, Pettigrew considered
that the Petitioner had difficulty understanding policy regarding client supervision, problems meeting
paperwork deadlines, problems regarding paperwork which opened cases and problems with
organization skills.

45. The Petitioner informed Pettigrew and Welch at the Petitioner's interview in December 1992 for the
vacant Intensive Probation Officer position that the Petitioner had not prepared for the interview, had
not talked with any Intensive Probation Officers, had not read the manual concerning the intensive
probation program and had applied at the end of the application period.

46. Honeycutt prepared for his job interview in December 1992 for the vacant Intensive Probation
Officer position by riding with surveillance officers and talking with Intensive Probation Officers for
several hours in their offices.

47. Knowledge and understanding of the Respondent's intensive probation program comes from one's
study of the program's manual and discussions with Intensive Probation officers about their job
duties.

48. The Petitioner read the Respondent's intensive probation program manual in order to prepare for a
job interview for a vacant Intensive Probation Officer position in September 1992 and talked with
some Intensive Probation Officers in order to prepare for his job interview for the vacant Intensive
Probation Officer position in December 1992.

49. The Petitioner was asked the same questions during his job interview for the vacant Intensive
Probation Officer position in September 1992 that he was asked during his job interview for the
vacant Intensive Probation Officer position in December 1992.

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CONTESTED CASE DECISIONS

50. Pettigrew and Welch considered the Petitioner's job interview for the vacant Intensive Probation
Officer position in December 1992 to be a poor one, determining that the Petitioner didn't answer
questions well due to "rambling" responses, that the Petitioner did not understand Intensive Probation
Officer policy, that the Petitioner had to be prodded to give his answers to interview questions
whereas other applicants were not and that there were some interview questions which the Petitioner
did not answer at all.

51 . Honeycutt was recommended for the vacant Intensive Probation Officer position in December 1992,
based upon his preparation for the job interview.

52. In not ever having done any work in the area of probation except for a six-month college internship,
Honeycutt had not done the type of work which was most relevant to the duties of an Intensive
Probation Officer.

53. Pettigrew did not consider the length of work service of any applicant for the vacant Intensive
Probation Officer position in December 1992, including the fact that Honeycutt's length of work
service was two months beyond the minimum length of service for qualification to become an
Intensive Probation Officer.

54. Welch considers that the Petitioner would be a good counselor with an intensive probation caseload.

55. Welch considers that the Petitioner is capable of doing all of the job requirements of an Intensive
Probation Officer which distinguish it from the position of Probation/Parole Officer.

56. In making their recommendations of applicants concerning the job vacancy of Intensive Probation
Officer in December 1992, Pettigrew and Welch determined that the Probation/Parole Officers
Barbara Stroupe and Steve Pate were their second and third choices, respectively, after Honeycutt
to be placed in the position.

57. Stroupe is approximately 25 years of age and Pate is approximately 34 years of age.

58. In September 1992 an Intensive Probation/Parole Officer position was available to be staffed in the
Respondent's Branch L.

59. Five job applicants were interviewed for the Intensive Probation/Parole Officer position by Pettigrew
and Welch which was available in September 1992, including the Petitioner and Dallas Frank
McMillan, Jr.

60. McMillan, a white male who was born on July 26, 1965 and therefore was 27 years of age at the
time of his interview in September 1992 for the job position of Intensive Probation/Parole Officer,
had 4 1/2 years of experience with the Respondent, working in the Respondent's Division of Adult
Probation and Parole since May 13, 1988.

61. Pettigrew and Welch recommended McMillan as their first choice to fill the vacant Intensive
Probation Officer position for which they conducted interviews in September 1992, stating in a
memorandum to the Respondent's employee John G. Patseavouras from Pettigrew dated September
9, 1992 that McMillan "has exceeded expectation in his present job and possesses the skills and
knowledge for this position."

62. In the September 9, 1992 memorandum from Pettigrew to Patseavouras concerning the recommended
applicant of Pettigrew and Welch to fill the vacant Intensive Probation Officer position, Pettigrew
stated that the Petitioner "adequately performs his duties as a parole officer, but we definitely do not
feel he is ready to move to the position of Intensive Officer."

63. The recommendation of Pettigrew and Welch that McMillan be awarded the vacant Intensive

8:18 NORTH CAROLINA REGISTER December 15, 1993 1842

CONTESTED CASE DECISIONS

Probation Officer position for which Pettigrew and Welch conducted interviews for the job vacancy
in September 1992 was followed, and McMillan was placed in the Intensive Probation Officer
position.

64. The Petitioner apologized to the job applicant interview team which conducted interviews in
September 1992 for the vacant Intensive Probation Officer position after the Petitioner's inadequate
preparation and poor performance in his interview.

65. In making their recommendation of applicants concerning the job vacancy of Intensive Probation
Officer in September 1992, Pettigrew and Welch determined that Pate was their second choice.

CONCLUSIONS OF LAW

1. North Carolina General Statutes Section 126-16 states, in pertinent part, that all State departments
and agencies shall give equal opportunity for employment and compensation, without regard to race
and age, to all persons otherwise qualified. This section with respect to age shall be limited to
individuals who are at least 40 years of age.

2. The Petitioner, who is 54 years of age and therefore over the age of 40 years, is entitled to the equal
opportunity protection afforded by N.C.G.S. §126-16 regarding age.

3. N.C.G.S. §126-36 states, in pertinent part, that any State employee who has reason to believe that
promotion was denied him because of his age or race shall have the right to appeal directly to the
State Personnel Commission.

4. The United States Supreme Court case of McDonnell Douglas Corporation v. Green , 41 1 U.S. 792,
93 S.Ct. 817, 36 L.Ed. 2d 688 (1973) establishes that in a discrimination case, the charging party
must establish a prima facie case of discrimination by providing sufficient facts in order to raise an
inference of discrimination. The responding party then must rebut this inference by presenting
evidence that the basis for its action was a legitimate, nondiscriminatory reason. The charging party
then has the opportunity to provide evidence that the responding party's reasons for its actions are
pretextual .

5. The Petitioner, as the charging party in this contested case, has established a prima facie case of age
discrimination by providing sufficient facts in order to raise an inference of discrimination, showing
that the Petitioner is over 40 years of age, that the Petitioner applied for a vacant Intensive
Probation/Parole Officer position which was available in December 1992, that a person who was 28
years of age was the successful applicant for the vacant Intensive Probation/Parole Officer position,
that unsuccessful job applicants for the vacant Intensive Probation/Parole Officer position in
December 1992 other than the Petitioner who are both under the age of 40 years were designated
as the second and third choices to fill the vacant position, that the Petitioner had previously applied
for a vacant Intensive Probation/Parole Officer position which was available in September 1992, that
a person who was 27 years of age was the successful applicant for the vacant Intensive Proba-
tion/Parole Officer position and that an unsuccessful job applicant for the vacant Intensive
Probation/Parole Officer position in September 1992 other than the Petitioner who was under the age
of 40 years was designated as the second choice to fill the vacant position.

6. The Respondent, as the responding party, has rebutted the inference of age discrimination by
presenting evidence that the bases for its action regarding the Petitioner's job promotional attempts
were legitimate and nondiscriminatory, showing that the successful job applicants for the Intensive
Probation/Parole Officer positions who were under the age of 40 years had exceeded expectations
in their respective job responsibilities and were qualified for the Intensive Probation Officer position,
that the Petitioner has made numerous errors in his filed work reports, that the Petitioner would have
problems with a voluminous amount of paperwork as an Intensive Probation Officer and that the
Petitioner did not perform well in his interviews for the vacant Intensive Probation/Parole Officer

1843 8:18 NORTH CAROLINA REGISTER December 15, 1993

CONTESTED CASE DECISIONS

positions.

7. The Petitioner has provided evidence that the Respondent's reasons for its actions are pretextual,
showing that (a) the Petitioner's job performance ratings had also exceeded expectations as illustrated
in his evaluations and that the Petitioner's job performance ratings in specific areas of evaluation
were higher than the successful applicant for the vacant Intensive Probation/Parole Officer position
which was available in September 1992; (b) the Petitioner had not committed any errors in his
reports between October 24, 1992 and September 7, 1993; (c) the Petitioner routinely handled the
paperwork for a caseload of clients which typically exceeds one hundred in number; and (d) the
Respondent placed undue weight on the performance of job applicants in interviews conducted by
job applicant interview teams in relation to other relevant criteria such as job performance ratings
and longevity of work service, both of which were given little to no weight by the Respondent's job
applicant interview team members George Pettigrew and Don Welch.

8. Title 25, Chapter ID, Rule .0301 of the North Carolina Administrative Code establishes that in job
promotional situations, selection should be based upon demonstrated capacity, quality and length of
service.

9. 25 NCAC II .0703 states, in pertinent part, that decisions relating to promotions should be based
on the overall performance and potential of the employee, and evaluation shall be systematic and
objective.

10. The Respondent utilized a procedure in staffing its vacant Intensive Probation/Parole Officer position
in December 1992 for which the Petitioner applied which did not properly evaluate the Petitioner's
demonstrated capacity, quality and length of service amounting to seventeen years with the
Respondent with recent high job performance ratings, and improperly gave little or no weight to such
systematic and objective criteria in favor of unduly weighting a single job interview to determine the
successful applicant for the Intensive Probation Officer position.

1 1 . The Respondent denied the Petitioner a promotion in his employment to the position of Intensive
Probation/Parole Officer, which was available in December 1992, because of his age.

RECOMMENDATION

It is recommended that the Petitioner be promoted within the Respondent's workforce to the position
of Intensive Probation/Parole Officer, or a position of similar responsibility and salary. It is further
recommended that the Petitioner be awarded: (1) the difference between the Petitioner's salary and the
Petitioner's salary which he would have received as an Intensive Probation/Parole Officer, authorized as back
pay in 25 NCAC IB .0421 to commence from the time that the Petitioner would have begun his job
responsibilities in the Intensive Probation/Parole Officer position which was available in December 1992; (2)
the difference between the Petitioner's salary and the Petitioner's salary which he would receive as an
Intensive Probation/Farole Officer, authorized as front pay in 25 NCAC IB .0422; and (3) reasonable
attorney's fees, authorized in 25 NCAC IB .0414(3). In light of the disposition of the age discrimination
issue, the undersigned does not reach the racial discrimination issue.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance, with North Carolina General Statute
150B-36(b).

NOTICE

The agency making the final decision in this contested case is required to give each party an
opportunity to file exceptions to this recommended decision and to present written arguments to those in the

8:18 NORTH CAROLINA REGISTER December 15, 1993 1844

CONTESTED CASE DECISIONS

agency who will make the final decision. G.S. 150B-36(a).

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 1

The agency that will make the final decision in this contested case is the North Carolina State
Personnel Commission.

This the 12th day of November, 1993.

Michael Rivers Morgan
Administrative Law Judge

1845 8:18 NORTH CAROLINA REGISTER December 15, 1993

NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM

1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these,
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major
department in the North Carolina executive branch of government has been assigned a title number.
Titles are further broken down into chapters which shall be numerical in order. The other two,
subchapters and sections are optional subdivisions to be used by agencies when appropriate.

TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSING BOARDS CHAPTER

Administration

Acupuncture

Agriculture

Architecture

Auditor

Auctioneers

Commerce

Barber Examiners

Correction

Certified Public Accountant Examiners

Council of State

Chiropractic Examiners

Cultural Resources

General Contractors

Elections

Cosmetic Art Examiners

Governor

Dental Examiners

Human Resources

Dietetics/Nutrition

Insurance

Electrical Contractors

Justice

Electrolysis

Labor

Foresters

14A

Crime Control & Public Safety

Geologists

15A

Environment, Health, and Natural

Hearing Aid Dealers and Fitters

Resources

Landscape Architects

Public Education

Landscape Contractors

Revenue

Marital and Family Therapy

Secretary of State

Medical Examiners

19A

Transportation

Midwifery Jomt Committee

Treasurer

Mortuary Science

*21

Occupational Licensing Boards

Nursing

Administrative Procedures

Nursing Home Administrators

Community Colleges

Occupational Therapists

Independent Agencies

Opticians

State Personnel

Optometry

Administrative Hearings

Osteopathic Examination & Reg. (Repealed)

Pharmacy

Physical Therapy Examiners

Plumbing. Heatmg & Fire Sprinkler Contractors

Podiatry Examiners

Practicing Counselors

Practicing Psychologists

Professional Engineers & Land Surveyors

Real Estate Appraisal Board

Real Estate Commission

Refrigeration Examiners

Sanitarian Examiners

Social Work Certification

Speech & Language Pathologists & Audiologists

Therapeutic Recreation Certification

Veterinary Medical Board

Note: Title 21 contains the chapters of the various occupational licensing boards.

8:18

NORTH CAROLINA REGISTER

December 15, 1993

1846

CUMULATIVE INDEX

(April 1993 - March 1994)

Pages

Issue

1 92 1 April

93 - 228 2 - April

229 - 331 3 - May

332 - 400 4 - May

401 - 455 5 - June

456 - 502 6 - June

503 - 640 7 - July

641 - 708 8 - July

709 - 792 9 - August

793 - 875 10 - August

876 - 1006 1 1 September

1007 - 1 184 12 September

1 1 85 - 1 307 13 October

1308 - 1367 14 - October

1368 - 1512 15 November

1513 - 1568 16 - November

1569 - 1719 17 - December

1720 - 1849 18 - December

Unless otherwise identified, page references in this Index are to proposed

rules.

ADMINISTRATION

Administration's Minimum Criteria, 5

Auxiliary Services, 1724

Low-Level Radioactive Waste Management Authority, 232

State Employees Combined Campaign, 1008

ADMINISTRATIVE HEARINGS

Civil Rights Division, 370
General, 366
Hearings Division, 1480
Rules Division, 367

AGRICULTURE

Aquaculture, 1212
N.C. State Fair, 506
Plant Industry, 513, 1212
Standards Division, 1212
Veterinary Division, 515,

212

COMMERCE

Alcoholic Beverage Control Commission, 408, 711, 1310

Banking Commission, 408, 798, 1312

Cemetery Commission, 810

Credit Union Division. 1724

Savings Institutions Division: Savings Institutions Commission, 461

State Ports Authority. 811, 1570

1847

8:18

NORTH CAROLINA REGISTER

December 15, 1993

CUMULATIVE INDEX

COMMUNITY COLLEGES

Community Colleges, 1527

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES

Coastal Management, 279, 571, 962, 1405

Comprehensive Conservation and Management Plan, 882

Departmental Rules, 465

Environmental Management, 210, 556, 658, 797, 893, 1254, 1748

Health Services, 283, 335, 425, 465, 572, 709, 762, 966, 1098, 1417, 1663, 1782

Marine Fisheries, 28, 568, 1573

Mining: Mineral Resources, 829

NPDES Permit, 710

Radiation Protection, 1662

Soil and Water Conservation Commission, 214, 1322

Vital Records, 1525

Wildlife Resources Commission, 32. 663, 831, 965, 1255, 1409, 1613, 1723, 1773

Zoological Park, 337

FEVAL DECISION LETTERS

Voting Rights Act, 4, 407, 460, 795, 880, 1371, 1514, 1569, 1722

GENERAL STATUTES

Chapter 7A, 1185
Chapter 150B, 1187

GOVERNOR/LT. GOVERNOR

Executive Orders, 1, 93, 229, 332, 401, 456, 641, 793, 876, 1007, 1209, 1308, 1368, 1513, 1720

HUMAN RESOURCES

Aging. Division of, 815, 1372

Blind, Services for the, 884

Deaf and Hard of Hearing, Services for the, 650

Facility Services, 94, 883, 1014, 1215, 1312, 1519, 1725

Medical Assistance, 25, 414, 553, 712, 888, 1316, 1742

Medical Care Commission, 644, 1312

Mental Health, Developmental Disabilities and Substance Abuse Services, 7, 413, 516, 1086, 1217

Social Services Commission, 237. 733, 1091, 1376. 1743

INSURANCE

Actuarial Services, 555, 657, 1249, 1321, 1403
Agent Services Division, 1399
Engineering and Building Codes Division, 1248
Financial Evaluation Division, 1093, 1317
Life and Health Division, 1094, 1318, 1400
Medical Database Commission, 463, 737
Property and Casualty Division, 1400
Special Services Division, 1096

JUSTICE

Alarm Systems Licensing Board, 761

Attorney General, Office of the, 28

Criminal Justice Education and Training Standards Commission, 253

Criminal Justice Standards Division, 241

Departmental Rules, 1096

Private Protective Services Board, 252, 890

8:18 NORTH CAROLINA REGISTER December 15, 1993 1848

CUMULATIVE INDEX

Sheriffs' Education and Training Standards Commission, 738

LABOR

OSHA, 97, 231. 278, 892. 1523. 1744

LICENSING BOARDS

Architecture. 43

Certified Public Accountant Examiners. 1418

Chiropractic Examiners, 1806

Cosmetic Art Examiners, 969. 1526

Dental Examiners. State Board of, 763

Electrolysis Examiners, Board of, 841, 1457

Foresters. Registration for. 674

Geologists. Board of, 285

Landscape Architects, 1256

Medical Examiners. Board of. 591. 1458. 1685

Mortuary Science. Board of. 45. 342. 971. 1461

Nursing. Board of, 1463

Nursing Home Administrators, 346

Occupational Therapy. 1469

Opticians. Board of. 1261

Pharmacy. Board of, 47. 354, 1326

Physical Therapy Examiners. 53, 767

Plumbing. Heating and Fire Sprinkler Contractors. 360

Practicing Psychologists. Board of. 844. 1807

Real Estate Commission. 53, 364

Refrigeration Examiners, 1148, 1526

Social Work. Certification Board for. 428. 1808

Therapeutic Recreation Certification Board, 1328

LIST OF RULES CODIFIED

List of Rules Codified. 61. 290. 432. 593, 769, 845. 1264, 1535. 1687

PUBLIC EDUCATION

Elementary and Secondary Education. 427, 470

SECRETARY OF STATE

Land Records Management Division. 1792

STATE PERSONNEL

Office of State Personnel. 286. 972. 1262, 1472

STATE TREASURER

Local Government Commission, 1795
Retirement Systems. 337. 1146

TAX RE\TEW BOARD

Orders of Tax Review. 503. 1516

TRANSPORTATION

Highways. Division of. 669. 836
Motor Vehicles. Division of. 1145

1849

8:18

NORTH CAROLINA REGISTER

December 15, 1993

NORTH CAROLINA ADMINISTRATIVE CODE

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